Posts Tagged ‘u.s. supreme court’

“‘We the Prisoners’: The Demise of the Fourth Amendment” by John W. Whitehead

Posted: June 28, 2016 in Uncategorized
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“Our carceral state banishes American citizens to a gray wasteland far beyond the promises and protections the government grants its other citizens… When the doors finally close and one finds oneself facing banishment to the carceral state—the years, the walls, the rules, the guards, the inmates—reactions vary. Some experience an intense sickening feeling. Others, a strong desire to sleep. Visions of suicide. A deep shame. A rage directed toward guards and other inmates. Utter disbelief. The incarcerated attempt to hold on to family and old social ties through phone calls and visitations. At first, friends and family do their best to keep up. But phone calls to prison are expensive, and many prisons are located far from one’s hometown… As the visits and phone calls diminish, the incarcerated begins to adjust to the fact that he or she is, indeed, a prisoner. New social ties are cultivated. New rules must be understood.”—Ta-Nehisi Coates, TheAtlantic

In a carceral state—a.k.a. a prison state or a police state—there is no Fourth Amendment to protect you from the overreaches, abuses, searches and probing eyes of government overlords.

In a carceral state, there is no difference between the treatment meted out to a law-abiding citizen and a convicted felon: both are equally suspect and treated as criminals, without any of the special rights and privileges reserved for the governing elite.

In a carceral state, there are only two kinds of people: the prisoners and the prison guards.

With every new law enacted by federal and state legislatures, every new ruling handed down by government courts, and every new military weapon, invasive tactic and egregious protocol employed by government agents, “we the people”—the prisoners of the American police state—are being pushed that much further into a corner, our backs against the prison wall.

This concept of a carceral state in which we possess no rights except for that which the government grants on an as-needed basis is the only way I can begin to comprehend, let alone articulate, the irrational, surreal, topsy-turvy, through-the-looking-glass state of affairs that is being imposed upon us in America today.

Battlefield_Cover_300As I point out in my book Battlefield America: The War on the American People, we who pretend we are free are no different from those who spend their lives behind bars.

Indeed, we are experiencing much the same phenomenon that journalist Ta-Nehisi Coates ascribes to those who are banished to a “gray wasteland far beyond the promises and protections the government grants its other citizens” : a sickening feeling, a desire to sleep, hopelessness, shame, rage, disbelief, clinginess to the past and that which is familiar, and then eventually resignation and acceptance of our new “normal.”

All that we are experiencing—the sense of dread at what is coming down the pike, the desperation, the apathy about government corruption, the deeply divided partisanship, the carnivalesque political spectacles, the public displays of violence, the nostalgia for the past—are part of the dying refrain of an America that is fading fast.

No longer must the government obey the law.

Likewise, “we the people” are no longer shielded by the rule of law.

While the First Amendment—which gives us a voice—is being muzzled, the Fourth Amendment—which protects us from being bullied, badgered, beaten, broken and spied on by government agents—is being disemboweled.

For instance, in a recent 5-3 ruling in Utah v. Strieff, the U.S. Supreme Court opened the door for police to stop, arrest and search citizens without reasonable suspicion or probable cause, effectively giving police a green light 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.

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In a blistering dissent, Justice Sonia Sotomayor blasted the court for holding “that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights.” Sotomayor continued:

This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. That justification must provide specific reasons why the officer suspected you were breaking the law, but it may factor in your ethnicity, where you live, what you were wearing, and how you behaved. The officer does not even need to know which law you might have brokenso long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous.

The indignity of the stop is not limited to an officer telling you that you look like a criminal. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’”

If you still can’t read the writing on the wall, Sotomayor breaks it down further: “This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong… So long as the target is one of the many millions of people in this country with an outstanding arrest warrant, anything the officer finds in a search is fair game for use in a criminal prosecution. The officer’s incentive to violate the Constitution thus increases…”

Just consider some of the many other ways in which the Fourth Amendment—which ensures that the government can’t harass you, let alone even investigate you, without probable cause—has been weakened and undermined by the courts, the legislatures and various government agencies and operatives.

Breath tests, blood draws: Americans have no protection against mandatory breathalyzer tests at a police checkpoint, although mandatory blood draws violate the Fourth Amendment (Birchfield v. North Dakota).

Ignorance of the law is defensible if you work for the government: Police officers who violate the law can be granted qualified immunity if they claim ignorance of the law (Heien v. North Carolina). That rationale was also applied to police who clearly used excessive force when they repeatedly tasered a pregnant woman during a routine traffic stop and were granted immunity from prosecution (Brooks v. City of Seattle).

High–speed car chases: Police officers can use lethal force in car chases without fear of lawsuits (Plumhoff v. Rickard).

No–knock raids: Police can perform a “no-knock” 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).

Warrantless searches by police: Police can carry out warrantless searches on our homes based on a “reasonable” concern by police that a suspect (or occupant) might be attempting to destroy evidence, fleeing or hurt, even if it’s the wrong house (Kentucky v. King). Police can also, without a warrant, search anyone who has been lawfully arrested (United States v. Robinson) as well as their property post-arrest (Colorado v. Bertine) and their vehicle (New York v.Belton), search a car they suspect might contain evidence of a crime (Chambers v. Maroney), and search a home when the arrest is made on its premises (Maryland v. Buie).

Forced DNA extractions: Police can forcibly take your DNA, whether or not you’ve been convicted of a crime. Innocent or not, your DNA will then be stored in the national FBI database (Maryland v. King).

Strip searches: Police can subject Americans to virtual strip searches, no matter the “offense” (Florence v. Board ofChosen Freeholders of the County of Burlington). 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.

Seizures: For all intents and purposes, you’re “seized” within the meaning of the Fourth Amendment from the moment an officer stops you (Brendlin v. California).

Search warrants on a leash: Police have free reign to use drug-sniffing dogs as “search warrants on leashes,” justifying any and all police searches of vehicles stopped on the roadside (Florida v. Harris), but the use of a K-9 unit after a reasonable amount of time has passed during a stop does violate the Fourth Amendment (Rodriguez v. United States).

Police and DUI Checkpoints: Police can conduct sobriety and “information-seeking” checkpoints (Illinois v. Lidster andMich. Dep‘t of State Police v. Sitz).

Interrogating public transit passengers: Police officers are free to board a bus, question passengers, and ask for consent to search without notifying them of their right to refuse (U.S v. Drayton).

Warrantless arrests for minor criminal offenses: Police can arrest you for minor criminal offenses, such as a misdemeanor seatbelt violation, punishable only by a fine (Atwater v. City of Lago Vista).

Stop and identify: Refusing to answer when a policeman asks “What’s your name?” can rightfully be considered a crime. No longer do Americans, even those not charged with any crime, have the right to remain altogether silent when stopped and questioned by a police officer (Hiibel v. Sixth Judicial District Court of the State of Nevada).

Traffic stops: As long as police have reasonable cause to believe that a traffic violation occurred, they may stop any vehicle (Whren v. U.S.). If probable cause justifies a vehicle search, then every part of the vehicle can be searched (U.S. v. Ross). A vehicle can be stopped even if the driver has not committed a traffic offense (U.S. v. Cortez).

Anonymous tips, careful driving, rigid posture and acne: Police officers can stop cars based only on “anonymous” tips (Navarette v. California). Police can also pull you over if you are driving too carefully, with a rigid posture, taking a scenic route, and have acne (U.S. v. Westhoven).

What many Americans fail to understand is the devastating amount of damage that can be done to one’s freedoms long before a case ever makes its way to court by government agents who are violating the Fourth Amendment at every turn. This is how freedoms, long undermined, can give way to tyranny through constant erosion and become part of the fabric of the police state through constant use.

Phone and email surveillance, databases for dissidents, threat assessments, terror watch lists, militarized police, SWAT team raids, security checkpoints, lockdowns, roadside strip searches: there was a time when any one of these encroachments on our Fourth Amendment rights would have roused the public to outrage. Today, such violations are shrugged off matter-of-factly by Americans who have been assiduously groomed to accept the intrusions of the police state into their private lives.

So when you hear about the FBI hacking into Americans’ computers without a warrant with the blessing of the courts, or states assembling and making public terror watch lists containing the names of those who are merely deemed suspicious, or the police knocking on the doors of activists in advance of political gatherings to ascertain their plans for future protests, or administrative government agencies (such as the FDA, Small Business Administration, Smithsonian, Social Security, National Oceanic and Atmospheric Administration, U.S. Mint, and Department of Education) spending millions on guns and ammunition, don’t just matter-of-factly file it away in that part of your brain reserved for things you may not like but over which you have no control.

It’s true that there may be little the average person can do to push back against the police state on a national level, but there remains some hope at the local level as long as we retain a speck of our independence and individuality—as long as we can resist the defeatist sense of double-consciousness (a phrase coined by W. E. B. Du Bois in which we view ourselves as inferior through the prism of our oppressors)—as long as we continue to cry out for justice for ourselves and those around us—as long as we refuse to be shackled and made prisoners—and as long as we continue to recognize that the only way the police state can truly acquire and retain power is if we relinquish it through our negligence, complacence and ignorance.

Unfortunately, we have been utterly brainwashed into believing the government’s propaganda and lies. Americans actually celebrate with perfect sincerity the anniversary of our independence from Great Britain without ever owning up to the fact that we are as oppressed now—more so, perhaps, thanks to advances in technology—than we ever were when Redcoats stormed through doorways and subjected colonists to the vagaries of a police state.

You see, by gradually whittling away at our freedoms—free speech, assembly, due process, privacy, etc.—the government has, in effect, liberated itself from its contractual agreement to respect our constitutional rights while resetting the calendar back to a time when we had no Bill of Rights to protect us from the long arm of the government.

Aided and abetted by the legislatures, the courts and Corporate America, the government has been busily rewriting the contract (a.k.a. the Constitution) that establishes the citizenry as the masters and agents of the government as the servants. We are now only as good as we are useful, and our usefulness is calculated on an economic scale by how much we are worth—in terms of profit and resale value—to our “owners.”

Under the new terms of this one-sided agreement, the government and its many operatives have all the privileges and rights and “we the prisoners” have none.

As Sotomayor concluded in her ringing dissent in Utah v. Strieff:

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.

The original post can be found here.

The U.S. Supreme Court: Marching in Lockstep with the Police State

Posted: January 19, 2015 in Uncategorized
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The U.S. Supreme Court was intended to be an institution established to intervene and protect the people against the government and its agents when they overstep their bounds. Yet, as John W. Whitehead points out in this week’s vodcast, Americans can no longer rely on the courts to mete out justice. In the police state being erected around us, the police and other government agents can 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.

Warning Against the Danger of Criminalizing Provocative Facebook Postings, TRI Calls on Supreme Court to Protect Internet Speech

Posted: August 25, 2014 in Uncategorized
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WASHINGTON, D.C. — Weighing in on a case that will significantly impact expression on Facebook, Twitter and other social networks, The Rutherford Institute has asked the U.S. Supreme Court to reverse the conviction of a Pennsylvania man who was charged with making unlawful threats (it was never proven that he intended to threaten anyone) and sentenced to 44 months in jail after he posted allusions to popular song lyrics and comedy routines on his Facebook page.

The Rutherford Institute’s amicus brief in Anthony D. Elonis v. United States of America argues that the First Amendment protects even inflammatory statements that may give offense or cause concern to others unless the statements were a credible threat to engage in violence against another and made by the defendant with the intent to cause fear in the alleged victim. The case arises out of Facebook postings made by Anthony Elonis expressing his anger about events in his life, and which were based upon rap lyrics of artists such as Eminem and a comedy sketch of the group The Whitest Kids U’ Know.

The Rutherford Institute’s amicus brief in Elonis v. United States is available at www.rutherford.org.

A Government of Wolves book cover“Whether it’s a Marine arrested for criticizing the government on Facebook or an ex-husband jailed for expressing his frustrations through rap lyrics on Facebook, the end result is the same—the criminalization of free speech,” said John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “While social media and the Internet have become critical forums for individuals to freely share information and express their ideas, they have unfortunately also become tools for the government to monitor, control and punish the populace for behavior and speech that may be controversial but are far from criminal.”

Anthony Elonis was an active poster on Facebook who often used references to popular culture to express his views, feelings and frustration about events in his life. In May 2010, after Elonis’ wife left him and took his two children, he began listening to rap music and alluding to the sometimes violent lyrics of rap songs on his Facebook page. Elonis would couple these postings with statements acknowledging that the lyrics were fictitious and that he was simply exercising his First Amendment right of expression. After his estranged wife obtained a protection order against him, Elonis posted a reference to a comedy sketch of The Whitest Kids U’ Know about threatening language that Elonis changed to include a reference about harming his wife. In another post, Elonis used the lyrics of Eminem in which the rap artist included fantasized thoughts about shooting up a school. After federal agents were alerted to some of his postings, an investigator was sent to speak with Elonis. In response, Elonis posted rap lyrics he wrote containing fantasized language about having a bomb strapped to his body and doing violence to the agent.

In response to these postings, the federal government charged Elonis under a statute making it a crime to transmit in interstate commerce any communication containing a threat to injure another. Elonis was convicted on four counts of violating this statute but appealed his conviction, arguing that the government should have been required to prove that he intended to threaten the alleged victims, not simply that the victims could reasonably have believed the words were “true threats.” In weighing in on the case before the U.S. Supreme Court, Rutherford Institute attorneys argue that “in order to protect the First Amendment rights of speakers, courts must ensure that they are criminalizing more than just the unrealized and unrealizable fears of particularly sensitive listeners.”

In a related case, The Rutherford Institute is also representing Marine veteran Brandon Raub, who was arrested, detained in a psychiatric ward, and forced to undergo psychological evaluations based solely on the controversial nature of lines from song lyrics, political messages and virtual card games which he posted to his private Facebook page.

The U.S. Supreme Court Is Marching in Lockstep with the Police State

Posted: June 23, 2014 in Uncategorized
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“[I]f the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can ‘seize’ and ‘search’ him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.”—U.S. Supreme Court Justice William O. Douglas

The U.S. Supreme Court was intended to be an institution established to intervene and protect the people against the government and its agents when they overstep their bounds. Yet as I point out in my book A Government of Wolves: The Emerging American Police State, Americans can no longer rely on the courts to mete out justice. In the police state being erected around us, the police and other government agents can 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 innocent motorists on the side of the road, these instances of abuse are continually validated by a judicial system that kowtows to virtually every police demand, no matter how unjust, no matter how in opposition to the Constitution.

These are the hallmarks of the emerging American 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.

A review of the Supreme Court’s rulings over the past 10 years, including some critical ones this term, reveals a startling and steady trend towards pro-police state rulings by an institution concerned more with establishing order and protecting government agents than with upholding the rights enshrined in the Constitution.

Police officers can use lethal force in car chases without fear of lawsuits. In Plumhoff v. Rickard (2014), the 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 officers can stop cars based only on “anonymous” tips. In a 5-4 ruling in Navarette v. California (2014), the Court declared that police officers can, under the guise of “reasonable suspicion,” stop cars and question drivers based solely on anonymous tips, no matter how dubious, and whether or not they themselves witnessed any troubling behavior. This ruling came on the heels of a ruling by the Tenth Circuit Court of Appeals in U.S. v. Westhoven that driving too carefully, with a rigid posture, taking a scenic route, and having acne are sufficient reasons for a police officer to suspect you of doing something illegal, detain you, search your car, and arrest you—even if you’ve done nothing illegal to warrant the stop in the first place.

Secret Service agents are not accountable for their actions, as long as they’re done in the name of security. In Wood v. Moss (2014), the Court granted “qualified immunity” to Secret Service officials who relocated anti-Bush protesters, despite concerns raised that the protesters’ First Amendment right to freely speak, assemble, and petition their government leaders had been violated. These decisions, part of a recent trend toward granting government officials “qualified immunity”—they are not accountable for their actions—in lawsuits over alleged constitutional violations, merely incentivize government officials to violate constitutional rights without fear of repercussion.

Citizens only have a right to remain silent if they assert it. The Supreme Court ruled in Salinas v. Texas (2013) that persons who are not under arrest must specifically invoke their Fifth Amendment privilege against self-incrimination in order to avoid having their refusal to answer police questions used against them in a subsequent criminal trial. What this ruling says, essentially, is that citizens had better know what their rights are and understand when those rights are being violated, because the government is no longer going to be held responsible for informing you of those rights before violating them.

Police have free reign to use drug-sniffing dogs as “search warrants on leashes,” justifying any and all police searches of vehicles stopped on the roadside. In Florida v. Harris (2013), a unanimous Court determined that police officers may use highly unreliable drug-sniffing dogs to conduct warrantless searches of cars during routine traffic stops. In doing so, the justices sided with police by claiming that all that the police need to do to prove probable cause for a search is simply assert that a drug detection dog has received proper training. The ruling turns man’s best friend into an extension of the police state.

Police can forcibly take your DNA, whether or not you’ve been convicted of a crime. In Maryland v. King (2013), a divided 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.” While the Court claims to have made its decision based upon concerns of properly identifying criminal suspects upon arrest, what they actually did is open the door for a nationwide dragnet of suspects targeted via DNA sampling.

Police can stop, search, question and profile citizens and non-citizens alike. The Supreme Court declared in Arizona v. United States (2012) that Arizona police officers have broad authority to stop, search and question individuals—citizen and non-citizen alike. While the law prohibits officers from considering race, color, or national origin, it amounts to little more than a perfunctory nod to discrimination laws on the books, while paving the way for outright racial profiling and destroying the Fourth Amendment.

Police can subject Americans to virtual strip searches, no matter the “offense.” A divided 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 (2012), 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 virtual 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.

Immunity protections for Secret Service agents trump the free speech rights of Americans. The court issued a unanimous decision in Reichle v. Howards (2012), siding with two Secret Service agents who arrested a Colorado man simply for daring to voice critical remarks to Vice President Cheney. However, contrast the Court’s affirmation of the “free speech” rights of corporations and wealthy donors in McCutcheon v. FEC (2014), which does away with established limits on the number of candidates an entity can support with campaign contributions, and Citizens United v. FEC (2010) with its tendency to deny those same rights to average Americans when government interests abound, and you’ll find a noticeable disparity.

Police can break into homes without a warrant, even if it’s the wrong home. In an 8-1 ruling in Kentucky v. King (2011), the Supreme Court placed their trust in the discretion of police officers, rather than in the dictates of the Constitution, when they gave police greater leeway to break into homes 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 interrogate minors without their parents present. In a devastating ruling that could very well do away with what little Fourth Amendment protections remain to public school students and their families—the Court threw out a lower court ruling in Camreta v. Greene (2011), which required government authorities to secure a warrant, a court order or parental consent before interrogating students at school. The ramifications are far-reaching, rendering public school students as wards of the state. Once again, the courts sided with law enforcement against the rights of the people.

It’s a crime to not identify yourself when a policeman asks your name. In Hiibel v. Sixth Judicial District Court of the State of Nevada (2004), a majority of the high court agreed that refusing to answer when a policeman asks “What’s your name?” can rightfully be considered a crime under Nevada’s “stop and identify” statute. No longer will Americans, even those not suspected of or charged with any crime, have the right to remain silent when stopped and questioned by a police officer.

The cases the Supreme Court refuses to hear, allowing lower court judgments to stand, are almost as critical as the ones they rule on. Some of these cases, turned away in recent years alone, have delivered devastating blows to the rights enshrined in the Constitution.

Legally owning a firearm is enough to justify a no-knock raid by police. Justices refused to hear Quinn v. Texas (2014) the case of a Texas man who was shot by police through his closed bedroom door and whose home was 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 military can arrest and detain American citizens. In refusing to hear Hedges v. Obama (2014), a legal challenge to the indefinite detention provision of the National Defense Authorization Act of 2012 (NDAA), the Supreme Court affirmed that the President and the U.S. military can arrest and indefinitely detain individuals, including American citizens. In so doing, the high court also passed up an opportunity to overturn its 1944 Korematsu v. United States ruling allowing for the internment of Japanese-Americans in concentration camps.

Students can be subjected to random lockdowns and mass searches at school. The Court refused to hear Burlison v. Springfield Public Schools (2013), a case involving students at a Missouri public school who were subjected to random lockdowns, mass searches and drug-sniffing dogs by police. In so doing, the Court let stand an appeals court ruling that the searches and lockdowns were reasonable in order to maintain the safety and security of students at the school.

Police officers who don’t know their actions violate the law aren’t guilty of breaking the law. The Supreme Court let stand a Ninth Circuit Court of Appeals decision in Brooks v. City of Seattle (2012) in which police officers who clearly used excessive force when they repeatedly tasered a pregnant woman during a routine traffic stop were granted immunity from prosecution. The Ninth Circuit actually rationalized its ruling by claiming that the officers couldn’t have known beyond a reasonable doubt that their actions—tasering a pregnant woman who was not a threat in any way until she was unconscious—violated the Fourth Amendment.

When all is said and done, what these assorted court rulings add up to is a disconcerting government mindset that interprets the Constitution one way for the elite—government entities, the police, corporations and the wealthy—and uses a second measure altogether for the underclasses—that is, you and me.

Keep in mind that in former regimes such as Nazi Germany and the Soviet Union, the complicity of the courts was the final piece to fall into place before the totalitarian beast stepped out of the shadows and into the light. If history is a guide, then the future that awaits us is truly frightening.

Time, as they say, grows short.

Ignorance of the Law Is No Excuse

Posted: June 18, 2014 in Uncategorized
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Insisting that “ignorance of the law is no excuse” when it comes to police officers being permitted to violate American citizens’ constitutional rights, The Rutherford Institute has asked the U.S. Supreme Court to hold law enforcement officials accountable to knowing and abiding by the rule of law. Specifically, in filing an amicus curiae brief  in Heien v. State of North Carolina, Rutherford Institute attorneys argue that courts must suppress evidence seized as a result of an improper stop of a motorist even though the police officer reasonably, but mistakenly, believed he was authorized by law to stop the vehicle.

“It’s a toss up which is worse—law enforcement officials who know nothing about the laws they have sworn to uphold, support and defend, or a constitutionally illiterate citizenry so clueless about their rights that they don’t even know when those rights are being violated,” said John W. Whitehead, president of The Rutherford Institute and author of the award-winning book A Government of Wolves: The Emerging American Police State. “Thomas Jefferson recognized that an educated citizenry is the only real assurance that freedom will survive. At the very least, anyone taking public office or working for the government in any capacity—whether it’s a police officer, a school teacher, or a member of Congress—should be required to have a working knowledge of the Constitution, particularly the Bill of Rights, and should be held accountable for upholding their precepts. At heart, that’s what this Heien case is really all about: ensuring that ignorance of the law, especially the Fourth Amendment, does not become a ready excuse for government officials to routinely violate the law.”

In April 2009, a Surry County (N.C.) law enforcement officer stopped a car traveling on Interstate 77, allegedly because of a brake light which at first failed to illuminate and then flickered on. The officer mistakenly believed that state law prohibited driving a car with one broken brake light. In fact, the state traffic law requires only one working brake light. Nevertheless, operating under a mistaken understanding of the law, during the course of the stop, the officer asked for permission to search the car. Nicholas Heien, the owner of the vehicle, granted his consent to a search. Upon the officer finding cocaine in the vehicle, he arrested and charged Heien with trafficking.

Prior to his trial, Heien moved to suppress the evidence seized in light of the fact that the officer’s pretext for the stop was erroneous and therefore unlawful. Although the trial court denied the motion to suppress evidence, the state court of appeals determined that since the police officer had based his initial stop of the car on a mistaken understanding of the law, there was no valid reason for the stop in the first place.

On appeal, the North Carolina Supreme Court ruled that even though the officer was wrong in concluding that the inoperable brake light was an offense, because the officer’s mistake was a “reasonable” one, the stop of the car did not violate the Fourth Amendment and the evidence resulting from the stop did not need to be suppressed. In weighing in on the case before the U.S. Supreme Court, Rutherford Institute attorneys warn against allowing government agents to “benefit” from their mistakes of law, deliberate or otherwise, lest it become an incentive for abuse.  Affiliate attorney Christopher F. Moriarty assisted The Rutherford Institute in advancing the arguments in the amicus brief before the U.S. Supreme Court.

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

Failing to Hold Police, Law Enforcement Accountable for Wrongdoing, U.S. Supreme Court Affirms Immunity Protections for Government Officials

Posted: May 27, 2014 in Uncategorized
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WASHINGTON, DC — Ruling in two separate cases in Plumhoff v. Rickard and Wood v. Moss, the U.S. Supreme Court has once again refused to hold law enforcement officials accountable for allegedly violating citizens’ constitutional rights. In the first case, the Court dismissed complaints against police officers who were involved in a fatal shooting, despite Fourth Amendment concerns that the officers needlessly resorted to a deadly use of force, and in the second, the Court granted “qualified immunity” to Secret Service officials who relocated anti-Bush protesters, despite concerns raised that the protesters’ First Amendment right to freely speak, assemble, and petition their government leaders had been violated. Noting that these decisions are part of a recent trend toward granting government officials “qualified immunity” in lawsuits over alleged constitutional violations, John W. Whitehead, president of The Rutherford Institute, warned that such rulings incentivize government officials to violate constitutional rights without fear of repercussion.

“Not a day goes by without reports of police officers overstepping the bounds of the Constitution and brutalizing, terrorizing and killing the citizenry. Indeed, the list of incidents in which unaccountable police abuse their power, betray their oath of office and leave taxpayers bruised, broken and/or killed grows longer and more tragic by the day to such an extent that Americans are now eight times more likely to die in a police confrontation than they are to be killed by a terrorist,” said constitutional attorney John W. Whitehead, author of A Government of Wolves: The Emerging American Police State. “This lawlessness on the part of government officials, an unmistakable characteristic of a police state, is made possible in large part by the courts, which increasingly defer to law enforcement and prioritize security over civil liberties. In so doing, the government gives itself free rein to abuse the law, immune from reproach, and we are all the worse off for it.”

In Wood v. Moss, the Ninth Circuit Court of Appeals found that Secret Service agents who removed only anti-Bush protesters (while allowing pro-Bush supporters standing on an adjacent street to remain) were not immune from lawsuit on First Amendment grounds, and had to make a showing that their actions were not unlawfully motivated by the viewpoint of the protesters. In reversing the Ninth Circuit, the U.S. Supreme Court held that the protesters’ rights to “equal access to the President” were not clearly established under the law, and that the agents’ actions were not motivated by the viewpoint of the protesters.

In Plumhoff v. Rickard, the Sixth Circuit Court of Appeals ruled that police officers who used lethal force against a man fleeing police in a high speed car chase were not immune from a wrongful death suit, and that the case should continue to trial. In Plumhoff, the deceased plaintiff led police officers on a high-speed car chase, which came to a halt after his car was spun out in a parking lot.  Officers proceeded to fire three shots at the stopped vehicle, then fired an additional 12 shots as the vehicle backed away, eventually killing both the driver and passenger of the vehicle.  The Sixth Circuit held that it could not conclude that the officers’ conduct was reasonable as a matter of law, and instead should proceed to a fact finder. In reversing the Sixth Circuit’s decision, the Supreme Court held that the officers’ use of deadly force to terminate the car chase did not violate the Fourth Amendment and the officers were immune from suit.

Why Are Americans Paying to Be Searched, Spied On, Shot At and Robbed Blind by the Government?

Posted: April 7, 2014 in Uncategorized
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Outrageous examples of wasteful government spending from Sen. Coburn’s 2013 ‘Wastebook’

“To force a man to pay for the violation of his own liberty is indeed an addition of insult to injury.”—Benjamin Tucker, 19th century advocate of American individualist anarchism

The State Department wants $400,000 to purchase a fiberglass sculpture of a camel looking at a needle for its new embassy in Pakistan. They’ve already spent their allotted $630,000 to increase the number of “likes” and fans on their Facebook and Twitter pages. The NATO ambassador for the U.S. needs $700,000 for landscaping and gardening, the National Science Foundation would like $700,000 to put on a theatrical production about climate change, and the Senate staffers need $1.9 million for lifestyle coaching. Also, Yale University researchers could really use $384,000 so they can study the odd cork-screw shape of a duck’s penis.

I promise this is no belated April Fools’ joke. These are actual line items paid for by American taxpayers, whose tax dollars continue to be wasted on extravagant, unnecessary items that serve no greater purpose than to fatten the wallets of corporations and feed political graft (such as the $1 million bus stop, complete with heated benches and sidewalks which can only shelter 15 people and provides little protection from rain, snow, or the sun).

Case in point: despite the fact that we have 46 million Americans living at or below the poverty line, 16 million children living in households without adequate access to food, and at least 900,000 veterans relying on food stamps, enormous sums continue to be doled out for presidential vacations ($16 million for trips to Africa and Hawaii), overtime fraud at the Department of Homeland Security (nearly $9 million in improper overtime claims, and that’s just in six of the DHS’ many offices), and Hollywood movie productions ($10 million was spent by the Army National Guard on Superman movie tie-ins aimed at increasing awareness about the National Guard).

This doesn’t even touch on the astronomical amounts of money spent on dubious wars abroad.

Consider that since 2001, Americans have spent $10.5 million every hour for numerous foreign military occupations, including in Iraq and Afghanistan. There’s also the $2.2 million spent every hour on maintaining the United States’ nuclear stockpile, and the $35,000 spent every hour to produce and maintain our collection of Tomahawk missiles. And then there’s the money the government exports to other countries to support their arsenals, at the cost of $1.61 million every hour for the American taxpayers.

Then there’s the U.S. Supreme Court’s recent decision in McCutcheon v. FEC, which reinforces a government mindset in which the rights of the wealthy are affirmed by the courts, while the rights of average, working class Americans are routinely dismissed as secondary to corporate and governmental concerns. Under the guise of protecting free speech, a divided 5-4 Court did away with established limits on the number of candidates an individual can support with campaign contributions.

In doing so, the justices expanded on the Court’s landmark 2010 ruling in Citizens United v. FEC, which not only gave unfettered free speech rights to corporations but paved the way for corporations to spend unlimited amounts of money promoting candidates, especially presidential candidates. What this does, of course, is turn the ballot box into an auction block, wherein those who are “elected” to public office are bought and paid for by those who can afford to support their campaigns—namely, lobbyists, corporations and high-dollar donors. (Then again, perhaps it will remain status quo. According to a 2013 study by Trinity University, U.S. Senators do not take into account the opinions and wishes of their lower class constituents. Rather, their voting was aligned with their upper class constituents. This dismissal of lower class opinion held true for both Republican and Democratic Senators, themselves made up of millionaires.)

When all is said and done, what we are witnessing is the emergence of a disconcerting government mindset that interprets the Constitution one way for corporations, government entities and the wealthy, and uses a second measure altogether for average Americans. For example, contrast the Supreme Court’s affirmation of the “free speech” rights of corporations and wealthy donors in McCutcheon and Citizens United with its tendency to deny those same rights to average Americans when government interests abound, such as in its 2012 decision in Reichle v. Howards, where a unanimous Supreme Court allowed immunity protections for Secret Service agents to trump the free speech rights of Americans, and you’ll find a noticeable disparity.

Unfortunately, as I point out in my book A Government of Wolves: The Emerging American Police State, this constitutional double standard is coming to bear in all aspects of our lives, not just in the realm of campaign finance law. It allows lobbyists intimate access to our elected officials, while prohibiting Americans from even standing silently in protest near a government building; it grants immunity to police officers who shoot unarmed citizens, while harshly punishing Americans who attempt to defend themselves, mistaking a SWAT team raid for a home invasion; and it gives government agents carte blanche access to Americans’ communications and activities, while allowing the government to operate in secret, with secret hearings, secret budgets and secret agendas.

This is a far cry from how a representative government is supposed to operate. Indeed, it has been a long time since we could claim to be the masters of our own lives. Rather, we are now the subjects of a militarized, corporate empire in which the vast majority of the citizenry work their hands to the bone for the benefit of a privileged few.

Adding injury to the ongoing insult of having our tax dollars misused and our so-called representatives bought and paid for by the moneyed elite, the government then turns around and uses the money we earn with our blood, sweat and tears to target, imprison and entrap us, in the form of militarized police, surveillance cameras, private prisons, license plate readers, drones, and cell phone tracking technology.

All of those nefarious deeds that you read about in the paper every day: those are your tax dollars at work. It’s your money that allows for government agents to spy on your emails, your phone calls, your text messages, and your movements. It’s your money that allows out-of-control police officers to burst into innocent people’s homes, or probe and strip search motorists on the side of the road. And it’s your money that leads to innocent Americans across the country being prosecuted for innocuous activities such as raising chickens at home, growing vegetable gardens, and trying to live off the grid.

Just remember the next time you see a news story that makes your blood boil, whether it’s a police officer arresting someone for filming them in public, or a child being kicked out of school for shooting an imaginary arrow, or a homeowner being threatened with fines for building a pond in his backyard, remember that it is your tax dollars that are paying for these injustices.

So what are you going to do about it?

There was a time in our history when our forebears said “enough is enough” and stopped paying their taxes to what they considered an illegitimate government. They stood their ground and refused to support a system that was slowly choking out any attempts at self-governance, and which refused to be held accountable for its crimes against the people. Their resistance sowed the seeds for the revolution that would follow.

Unfortunately, in the 200-plus years since we established our own government, we’ve let bankers, turncoats and number-crunching bureaucrats muddy the waters and pilfer the accounts to such an extent that we’re back where we started. Once again, we’ve got a despotic regime with an imperial ruler doing as they please. Once again, we’ve got a judicial system insisting we have no rights under a government which demands that the people march in lockstep with its dictates. And once again, we’ve got to decide whether we’ll keep marching or break stride and make a turn toward freedom.

But what if we didn’t just pull out our pocketbooks and pony up to the federal government’s outrageous demands for more money? What if we didn’t just dutifully line up to drop our hard-earned dollars into the collection bucket, no questions asked about how it will be spent? What if, instead of quietly sending in our checks, hoping vainly for some meager return, we did a little calculating of our own and started deducting from our taxes those programs that we refuse to support?

If we don’t have the right to decide what happens to our hard-earned cash, then we don’t have very many rights at all. If they can just take from you what they want, when they want, and then use it however they want, you can’t claim to be anything more than a serf in a land they think of as theirs. This was the case in the colonial era, and it’s the case once again.

Lights, Camera, Arrested: Americans Are Being Thrown in Jail for Filming Police

Posted: March 10, 2014 in Uncategorized
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“I thought I had freedom of speech here,” the man said to the police officer.
“You don’t. You just lost it,” the officer replied.

Once again, the U.S. government is attempting to police the world when it should be policing its own law enforcement agencies. We’ve got a warship cruising the Black Sea, fighter jets patrolling the Baltic skies, and a guided-missile destroyer searching the South China Sea for the downed Malaysia Airlines flight. All the while, back home in the U.S., our constitutional rights are going to hell in a hand basket, with homeowners being threatened with eviction for attempting to live off the grid, old women jailed for feeding crows, and citizens armed with little more than a cell phone arrested for daring to record police activities.

Robin Speronis now finds herself threatened with eviction from her own Florida home for daring to live off the grid, independent of city utilities such as water and electricity. City officials insist the Cape Coral resident’s chosen way of life violates international property maintenance code and city ordinances. Mary Musselman, also a Florida resident, is being held in jail without bond for “feeding wild animals.” The 81-year-old Musselman, on probation after being charged with feeding bears near her home, was arrested after officers discovered her leaving bread out for crows. Meanwhile, Brandy Berning of Florida was forced to spend a night in jail after recording her conversation with an officer who pulled her over for a routine traffic stop.

Welcome to the farce that passes for law and order in America today, where, as I point out in my book A Government of Wolves: The Emerging American Police State, crime is low, militarized police activity is on the rise, and Americans are being penalized for living off the grid, feeding wild animals, holding Bible studies in their back yard, growing vegetables in their front yard, collecting rainwater, and filming the police.

This latter point should really stick in your craw. Consider the irony: the government insists it can carry out all manner of surveillance on us—listen in on our phone calls, read our emails and text messages, track our movements, photograph our license plates, even enter our biometric information into DNA databases—but if we dare to return the favor, even a little, we get roughed up by the police, arrested, charged with violating various and sundry crimes (often trumped up), and forced to make restitution.

For example, George Thompson of Boston was arrested after he used his cell phone to record a police officer he describes as being “out of control.” University of Texas college student Abie Kyle Ikhinmwi was arrested after recording a police speed trap with her cell phone. Kansas teen Addison Mikkelson was arrested after filming a patrol car allegedly speeding and failing to use a turn signal.

Leon Rosby was filming a police standoff in June 2013, his cellphone in one hand and his dog’s leash in the other, when three officers approached him. Anticipating a problem, Rosby placed his 2-year-old Rottweiler, Max, in his car. The LA Times reports: “As officers cuffed Rosby, the dog escaped through an open window and began to bark and lunge at officers. One officer tried to grab the dog’s leash, then drew his gun and fired four shots, killing Max. Video of the incident went viral on YouTube, prompting a public outcry and drawing protesters to the Police Department headquarters.” Rosby has now filed a civil rights lawsuit against the city and the three police officers.

And then there is the Baltimore man who was threatened by police after they discovered him filming them during an arrest. The local CBS station ran the footage of the ensuing confrontation, which went something like this:

“I’m allowed to do this,” the man told the officer.

“Get it out of my face,” the officer replied.

“I have my rights,” the man said.

“You have no rights,” the officer said.

But the man didn’t stop rolling and was once again aggressively approached.

“Do you see the police presence here? Do you see us all? We’re not [expletive] around. Do you understand? Do not disrespect us and do not not listen to us,” the officer said. “Now walk away and shut your [expletive] mouth or you’re going to jail, do you understand?”

After backing away, the officer came at the man a third time, appearing to grab him.

“I thought I had freedom of speech here,” the man said.

“You don’t. You just lost it,” the officer replied.

And that, in a nutshell, is what happens when law enforcement officials—not just the police, but every agent of the government entrusted with enforcing laws, from the president on down—are allowed to discard the law when convenient. At the point where there’s a double standard at play, where the only ones having to obey the law are the citizenry and not the enforcers, then that vital “social contract” that John Locke envisioned as the basis for society breaks down. The more we allow government officials to operate outside the law, the more we ensure that the law becomes only a tool to punish us, rather than binding and controlling the government, as it was intended.

This brings me back to the problem of Americans getting arrested for filming the police. Until recently, this has primarily been a problem experienced by journalists and photographers attempting to document political protests and other disturbances involving the police. However, with the preponderance of smart phones capable of recording audio and video, individuals who dare to record police engaged in questionable or abusive activities in public are increasingly finding themselves on the receiving end of the harsh treatment they intended to document. These videos, if widely distributed, can be a powerful method of subjecting police to closer scrutiny and holding them accountable to respecting the rights of those they are supposed to serve.

Naturally, police agencies and unions have sought out legal prohibitions on such videos from being created. Massachusetts police, for instance, have invoked a state surveillance law to charge citizen video-makers criminally for their actions. Because the state surveillance law requires “two-party” consent, most kinds of public filming can be construed as illegal. Similar laws exist in California, Florida, Illinois, Michigan, and Pennsylvania. The law was enacted to protect private citizens from invasive surveillance, but the police have exploited it to curtail free speech that tarnishes their public image. Police claim that this regulation gives them legal justification to prohibit filming by citizens such as Jeffrey Manzelli, a journalist who recorded the police intimidating protesters at a rally and was arrested and charged under the law.

Saddled with costly lawsuits brought by individuals allegedly brutalized by police who didn’t appreciate their actions being filmed, a few cities across the country are attempting to adopt policies to protect citizens who film the police. In Troy, N.Y., for example, city police officers would face a fine and jail time if they stop people from legally photographing or filming them. If adopted, the Troy ordinance, which would carry a maximum $5,000 fine and a jail term of up to 15 days for an officer found guilty of violating it, would be the first of its kind in the country.

As part of a $200,000 legal settlement, Indianapolis police will soon be required to remind its officers that citizens have a legal right to videotape on-duty police officers. The case arose after a 66-year-old Indianapolis resident was tackled to the ground, arrested and charged with resisting arrest, disorderly conduct and public intoxication (he was found not guilty of the charges) after he used his cellphone to record police arresting a young man in his neighbor’s driveway. There is also a movement afoot to equip police with on-officer cameras that would provide footage of what an officer sees.

The courts, thus far, have favored the First Amendment rights of eyewitness filmmakers, even in the face of state efforts to outlaw such activities. In 2012, the U.S. Supreme Court refused to hear an appeal of an Illinois eavesdropping law that makes recording law enforcement officers a first-class felony punishable by up to 15 years in prison. In 2013, the U.S. Department of Justice issued a statement of interest in the case of Mannie Garcia v. Montgomery County, Md., declaring that not only do individuals have a First Amendment right to record officers publicly doing their duties, they also have Fourth and Fourteenth Amendment rights protecting them from having those recordings seized without a warrant or due process.

The Garcia case involves a journalist who was arrested and charged with disorderly conduct for filming police as they detained two men. According to the lawsuit, police “dragged Garcia to the police car, put him in handcuffs, threw him to the ground by kicking his feet out from under him, taunted him, threatened to arrest his wife if she came too close and took his camera, and seized the memory card, which was never returned.”

The problem, as the U.S. Court of Appeals for the Seventh Circuit recognized in Payne v. Pauley, is that “[p]olice officers must be more thick skinned than the ordinary citizen and must exercise restraint in dealing with the public” and “must not conceive that every threatening or insulting word, gesture, or motion amounts to disorderly conduct.”

The difficulty we face is that police officers are becoming increasingly thin skinned, less restrained in dealing with the public, and more inclined to conceive every word, gesture, or motion as a threat. In an ideal world, police would recognize that, as public servants, they are rightfully subject to recording and surveillance when carrying out their public duties. Unfortunately, this is far from an ideal world.

So what are we to do?

We must continue to stand up for our rights, record police when the opportunity presents itself, and politely remind any offended officers that they are, in fact, our public servants and, as such, their behavior is subject to public scrutiny. If they disagree and attempt to stop us from recording, we can refer them to the U.S. Constitution, which they have sworn to uphold, which protects our right to record matters of public interest. And if they continue to insist on hauling people to jail because they don’t like the idea of transparency and accountability, they can take it up with the courts. The goal is to eventually arrive at a point where we can keep a watchful eye on our government officials, instead of the other way around. As Justice Louis D. Brandeis once observed, “Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” — John W. Whitehead

Free Speech, RIP: A Relic of the American Past

Posted: March 4, 2014 in Uncategorized
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“The First Amendment was intended to secure something more than an exercise in futility.”—Justice John Paul Stevens, dissenting in Minnesota Board for Community Colleges v. Knight (1984)

Living in a representative republic means that each person has the right to take a stand for what they think is right, whether that means marching outside the halls of government, wearing clothing with provocative statements, or simply holding up a sign. That’s what the First Amendment is supposed to be about.

Unfortunately, as I show in my book A Government of Wolves: The Emerging American  Police State, through a series of carefully crafted legislative steps and politically expedient court rulings, government officials have managed to disembowel this fundamental freedom, rendering it with little more meaning than the right to file a lawsuit against government officials. In fact, if the court rulings handed down in the last week of February 2014 are anything to go by, the First Amendment has, for all intents and purposes, become an exercise in futility.

On February 26, the U.S. Supreme Court in a 9-0 ruling, held that anti-nuclear activist John Denis Apel could be prosecuted for staging a protest on a public road at an Air Force base, free speech claims notwithstanding, because the public road is technically government property.

Insisting that it’s not safe to display an American flag in an American public school, on February 27, the Ninth Circuit Court of Appeals ruled that school officials were justified when they ordered three students at a California public high school to cover up their patriotic apparel emblazoned with American flags or be sent home on the Mexican holiday Cinco de Mayo, allegedly out of a concern that it might offend Hispanic students.

On February 28, a federal court dismissed Marine veteran Brandon Raub’s case. Despite the fact that Raub was interrogated by Secret Service agents, handcuffed, arrested, subjected to a kangaroo court, and locked up in a mental facility for posting song lyrics and statements on Facebook critical of the government—a clear violation of his free speech rights—the court ruled that Raub’s concerns about the government were far-fetched and merited such treatment.

There you have it: three rulings in three days, from three different levels of the American judicial system, and all of them aimed at suppressing free speech. Yet what most people fail to understand is that these cases are not merely about the citizenry’s right to freely express themselves. Rather, these cases speak to the citizenry’s right to express their concerns about their government to their government, in a time, place and manner best suited to ensuring that those concerns are heard.

The First Amendment gives every American the right to “petition his government for a redress of grievances.” This amounts to so much more than filing a lawsuit against the government. It works hand in hand with free speech to ensure, as Adam Newton and Ronald K.L. Collins report for the Five Freedoms Project, “that our leaders hear, even if they don’t listen to, the electorate. Though public officials may be indifferent, contrary, or silent participants in democratic discourse, at least the First Amendment commands their audience.”

The challenge we face today, however, is that government officials have succeeded in insulating themselves from their constituents, making it increasingly difficult for average Americans to make themselves seen or heard by those who most need to hear what “we the people” have to say. Indeed, while lobbyists mill in and out of the White House and the homes and offices of Congressmen, the American people are kept at a distance through free speech zones, electronic town hall meetings, and security barriers. And those who dare to breach the gap—even through silent forms of protest—are arrested for making their voices heard.

This right to speak freely, assemble, protest and petition one’s government officials for a redress of grievances is front and center right now, with the U.S. Supreme Court set to decide five free speech cases this term, the first of which, U.S. v. Apel, was just handed down. The case was based upon claims brought by John Denis Apel, an anti-war activist who holds monthly protests at Vandenburg Air Force Base near Lompoc, California. While the Court did not uphold his conviction for trespassing on military property, they doubled down on the notion that the public is subject to the whims of military commanders in matters relating to use military property, even when it intersects with public property. The Court refused to rule on Apel’s First Amendment claims.

The Supreme Court is also set to decide McCullen v. Coakley, which will determine whether or not a Massachusetts law which restricts protests on public sidewalks near the entrances, exits, and driveways of abortion clinics in the state is constitutional. The facts of the case indicate that the law does not abide by a reasonable time, place, and manner restriction, and places an undue burden on protestors. However, it’s unclear which way the Court will rule, especially with their refusal to clarify matters in Apel.

Free speech can certainly not be considered “free” when expressive activities across the nation are being increasingly limited, restricted to so-called free speech zones, or altogether blocked, including in front of the Supreme Court’s own plaza. If citizens cannot stand out in the open on a public road and voice their disapproval of their government, its representatives and its policies, without fearing prosecution, then the First Amendment with all its robust protections for free speech, assembly and the right to petition one’s government for a redress of grievances is little more than window-dressing on a store window—pretty to look at but serving little real purpose.

The case of Harold Hodge is a particularly telling illustration of the way in which the political elite in America have sheltered themselves from all correspondence and criticism.

On a snowy morning in January 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.” There weren’t many passersby, and he wasn’t blocking anyone’s way. However, after a few minutes, a police officer informed Hodge that he was violating a federal law that 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 and issued him three warnings to leave the plaza. Hodge refused, was handcuffed, placed under arrest, moved to a holding cell, and then was transported to U.S. Capitol Police Headquarters where he was booked and given a citation.

According to the federal law Hodge is accused of violating, “It is unlawful to parade, stand, or move in processions or assemblages in the Supreme Court Building or grounds, or to display in the Building and grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement.” The penalty for violating this law is a fine of up to $5,000 and/or up to 60 days in jail.

With the help of The Rutherford Institute, in January 2012, Hodge challenged the constitutionality of the statute barring silent expressive activity in front of the Supreme Court. A year later, in a strongly worded opinion, District Court Judge Beryl L. Howell struck down the federal law, declaring that the “the absolute prohibition on expressive activity [on the Supreme Court plaza] in the statute is unreasonable, substantially overbroad, and irreconcilable with the First Amendment.”

Incredibly, one day later, 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. Hodge’s case, along with a companion case challenging the new regulations on behalf of a broad coalition of protesters, is now making its way through the appeals process. Ironically, 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.

This desire to insulate government officials from those exercising their First Amendment rights stems from an elitist mindset which views “we the people” as different, set apart somehow, from the citizens they have been appointed to serve and represent. It is nothing new. In fact, the law under which Harold Hodge was prosecuted was enacted by Congress in 1949. In the decades since, interactions with politicians have become increasingly manufactured and distant. Press conferences, ticketed luncheons, televised speeches and one-sided town hall meetings held over the phone now largely take the place of face-to-face interaction with constituents.

Additionally, there has been an increased use of so-called “free speech zones,” designated areas for expressive activity used to corral and block protestors at political events from interacting with public officials. Both the Democratic and Republican parties have used these “free speech zones,” some located within chain-link cages, at various conventions to mute any and all criticism of their policies.

Clearly, the government has no interest in hearing what “we the people” have to say. Yet if Americans are not able to peacefully assemble for expressive activity outside of the halls of government or on public roads on which government officials must pass, the First Amendment has lost all meaning. If we cannot stand silently outside of the Supreme Court or the Capitol or the White House, our ability to hold the government accountable for its actions is threatened, and so are the rights and liberties that we cherish as Americans. And if we cannot proclaim our feelings about the government, no matter how controversial, on our clothing, or to passersby, or to the users of the world wide web, then the First Amendment really has become an exercise in futility.

George Orwell, always relevant to our present age, warned against this intolerance for free speech in 1945. As he noted:

The point is that the relative freedom which we enjoy depends of public opinion. The law is no protection. Governments make laws, but whether they are carried out, and how the police behave, depends on the general temper in the country. If large numbers of people are interested in freedom of speech, there will be freedom of speech, even if the law forbids it; if public opinion is sluggish, inconvenient minorities will be persecuted, even if laws exist to protect them… The notion that certain opinions cannot safely be allowed a hearing is growing. It is given currency by intellectuals who confuse the issue by not distinguishing between democratic opposition and open rebellion, and it is reflected in our growing indifference to tyranny and injustice abroad. And even those who declare themselves to be in favour of freedom of opinion generally drop their claim when it is their own adversaries who are being prosecuted.

U.S. Supreme Court Refuses to Hear Case of Student Subjected to Random Lockdown and Mass Search By Police in Public School

Posted: October 9, 2013 in Uncategorized
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The U.S. Supreme Court has refused to hear an appeal in Burlison v. Springfield Public Schools, a case brought by attorneys for The Rutherford Institute on behalf of a student at a Missouri school who was subjected to a random lockdown and mass search by police. Rutherford Institute attorneys had appealed the case to the high court, challenging a Missouri school district’s policy of imposing a “lockdown” of the school for the purpose of allowing the local sheriff’s department, aided by drug-sniffing dogs, to perform mass inspections of students’ belongings.

By refusing to hear this case, the U.S. Supreme Court has once again proven itself one of the most egregious defenders of the emerging American police state. While this is a disappointing turn of events, it only strengthens our resolve to keep pushing back against a government which increasingly sees its citizens, especially the youth, as suspects requiring surveillance and control, rather than a free people whose rights should not be subject to the whims of police officials.

The case arose out of an incident that took place on April 22, 2010, when the principal of Central High School announced over the public address system that the school was going into “lockdown” and that students were prohibited from leaving their classrooms. School officials and agents of the Greene County Sheriff’s Department thereafter ordered students in random classrooms to leave all personal belongings behind and exit the classrooms. Dogs were also brought in to assist in the raid. Upon re-entering the classrooms, students allegedly discovered that their belongings had been rummaged through. Mellony and Doug Burlison, who had two children attending Central High School, complained to school officials that the lockdown and search were a violation of their children’s rights. School officials allegedly responded by insisting that the search was a “standard drill” and policy of the school district which would continue.

The Rutherford Institute sued the school district in September 2010 on behalf of the Burlisons and their two children, asking a federal district court to declare that the practice of effecting a lockdown of the school and conducting random, suspicionless seizures and searches violates the Fourth Amendment to the U.S. Constitution and the similar provision of the Missouri Constitution.

In its January 2012 decision, the district court declared that the random lockdown and mass searches did not violate students’ rights. In March 2013, the U.S. Court of Appeals for the Eighth Circuit found the lockdown policy was a reasonable procedure to maintain the safety and security of students at the school. Specifically, the Court of Appeals affirmed the judgment by holding that the school’s interest in combatting drug use outweighed the privacy rights of students. However, Rutherford Institute attorneys disagreed, insisting that government officials should be required to show particularized suspicion for instituting such aggressive searches and to operate within the parameters of the Fourth Amendment.

Warning against the long-term ramifications of treating young people as if they have no rights, The Rutherford Institute then appealed the case to the U.S. Supreme Court, asking the high court to declare the use of random lockdowns, mass searches and drug-sniffing dogs in the public schools to be unconstitutional in violation of the Fourth Amendment’s prohibition on unreasonable seizures. By refusing to hear the case, the U.S. Supreme Court has effectively cemented in place the school district’s policy.

Affiliate attorneys Jeffrey L Light of Washington, D.C. and Jason T. Umbarger of Springfield, Mo., assisted The Rutherford Institute in its defense of the Burlison family.

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