A War, in fact, which we cannot win.  Because to win, you see, we’d have to be something other than what we are…

…humans.

The Fresno Bee, publishing an Associated Press story, began my day with this:

After 40 years, the United States’ war on drugs has cost $1 trillion and hundreds of thousands of lives, and for what?  Drug use is rampant and violence even more brutal and widespread.  (Martha Mendoza, “A Failed Plan? Fight against drugs costs more than ever with no end in sight” (March 18, 2010) B1, col. 2.)

I guess it’s been long enough since Prohibition that everyone forgot we lost that War, too.  Call it “Drug War I.”  We’ve been stuck for quite some time in “Drug War II.”

Like the World Wars after which I modeled those names, the United States, while a key player, is just one piece in the war.  Unlike those Wars, there are no heroes: we’re not riding to anyone’s rescue.  (The War does let us occasionally do something, though, that the United States has been good at since before it was born: there’s been a lot of “collateral damage” to indigenous peoples.)  Like its older siblings, the World Wars, this one has seen our troops distributed around the globe.

Not everyone agrees that this War has been as much a waste of resources and has brought on as much human misery as the original Prohibition.

“To say that all the things that have been done in the war on drugs haven’t made any difference is ridiculous,” [former U.S. drug czar] Walters said.  “It destroys everything we’ve done.  It’s saying all the people involved in law enforcement, treatment and prevention have been wasting their time.  It’s saying all these people’s work is misguided.”  (Mendoza, supra.)

In other words, as with the original Prohibition, that would require us to admit a colossal mistake.

If only we could destroy everything they’ve done!  But, alas, the legacy of this failed War will likely outlast the United States.  It has already outlasted the Constitution.

In fact, a fairly strong argument can be made that Drug War II necessitated — and thus it is no surprise that it brought about — the death of that Constitution.

First, it necessitated the death because, as the previously-linked page delineates, the War on Drugs is almost certainly unconstitutional.  In earlier times, virtually all Americans would have recognized this.  That’s why our original Prohibition required a constitutional amendment.  So far as I know, that amendment is the first-ever constitutional stripping away of rights.  Finally realizing the stupidity of that act, the 21st amendment repealed the 18th — repealed Prohibition — and restored the rights which had been stripped away by that one-of-a-kind amendment.

That, to my knowledge, is the only time rights have been constitutionally stripped away from us.  It would not, however, be the last time we were stripped of our rights.  After the gyrations the government had to go through first to implement Prohibition and then to repeal it — as any supporter of the Equal Rights Amendment can tell you, getting constitutional amendments passed is hell! — they just decided it would be easier to ignore the Constitution whenever it got in the way, rather than to amend it.  A primary argument of this post is that the War on Drugs has actually been a War on Rights, stripping away nearly everything, as the United States Constitution has been quite literally flipped on its head.  It’s as if the Constitution, invented long before photography, were a negative.

Oh, crap.  I forget that most of my readers probably grew up with digital cameras.

Short aside: In the old days, a “negative” was a piece of glass, or (in more recent times) a piece of chemical-coated plastic.  We called the plastic versions, at least, “film.”  You’ve heard the term.  You probably just didn’t know what it meant.  Anyway, when the shutter opened on a camera, it exposed the “film” to light.  The bright parts of the original subject — the thing you were taking a picture of — became represented on a negative as dark parts; the dark parts ended up on the negative as light parts.  It was the exact opposite of the scene you were photographing.

Like our Constitution.  And your rights.  And the power of the government.

The Constitution was meant to place limitations on what governments could do.  The rights — actually we called them “powers” — of government were limited.  The rights — we actually called them rights! — of human beings were not.  Except to the extent that it was necessary to give some up in order to give those rights — now called “powers” — to government.

The idea was to give up just enough of our rights to allow a government to do the most basic of tasks: keep us safe from people — like Kings, or maybe dictators, foreign countries, or maybe despots within our own country — who would try to reduce the rest of our rights.  The ones we kept.

Well, around about the time we started to develop glass plates — those were the predecessors to film, but I didn’t want to really do a full-on photography history lesson here — government, primarily driven by then-President Abraham Lincoln, got the idea that the Constitution, paper though it was, was a kind of negative as well.  Where we previously thought the Constitution limited the rights (remember, we called them “powers”) of the government, our government began to promulgate the theory that the limitation was actually on our rights (remember, we called them “rights”; actually, sometimes we referred to them as “freedoms”).

So it came to be that today people mistakenly believe that the Constitution limits the rights of individuals.  And if a right claimed by a person is not “in the Constitution,” then it doesn’t exist.

Oh how I wish someone would have told Hamilton “show me where the Constitution grants people a right to privacy!”

This confusion about what the Constitution does and does not do happened for two reasons.

The first is that people don’t read anymore.  After all, you can’t actually read the Constitution — in English, Spanish, or even Swahili (I don’t know if it’s actually printed in Swahili) — and not realize that it is the government which is being limited.  You can’t read the Constitution and actually not see that there is a Ninth and a Tenth Amendment in The First Ten Amendments, a.k.a., the Bill of Rights.  (Hamilton was 100% spot-on about the dangers of that damn thing.)

The second reason is that over the years since America’s first dictator — Abraham Lincoln — saved us from ourselves, our government has increasingly desensitized us to the idea that it was, in fact, limited; that we were, in fact, not intended to be, except to the smallest extent necessary, as mentioned above.

Besides, most of the other nations left us alone after the first few decades following the Revolution.  With no one else to fight, we’ve had to start or invent various wars — the Mexican-American War (oh, darn, I wasn’t going to mention that after yesterday’s debacle), Civil War, Drug War I (Prohibition) and, most recently, Drug War II — just so our government would have something to do.

Besides, our leaders can’t survive without war.  Or, at least, they can’t survive in the style to which they’ve become accustomed.

But the fact of the matter is that, for the rest of us, for the average American, the War on Drugs has been an abject failure.

[President] Nixon’s first drug-fighting budget was $100 million.  It’s now risen to $15.1 billion, 31 times Nixon’s amount even when adjusted for inflation.

Regardless of the additional funds, high school students report the same rates of illegal drug use as they did in 1970, and the Centers for Disease Control and Prevention says drug overdoses have “risen steadily” since the early 1970s to more than 20,000 last year.  (Mendoza, supra.)

Nixon, by the way, started Drug War II after being forced to end the Vietnam War.  As I said, our leaders need wars.

The Justice Department estimates the consequences of drug abuse — “an overburdened justice system, a strained health-care system, lost productivity and environmental destruction” — cost the United States $215 billion a year.

Harvard University economist Jeffrey Miron says the only sure thing taxpayers get for more spending on police and soldiers is more homicides.  (Mendoza, supra, emphasis added.)

Now we know how this happens.

Much of the meaninglessness of the Fourth Amendment to the Constitution — that which controls searches and seizures by the government — can be directly traced to Drug War I and Drug War II.  During Prohibition, the case law allowing searches of automobiles developed to combat bootleggers. Likewise, the initial development of case law regarding wiretaps grew out of the Prohibition. In a very real sense, then, the Wars on Drugs — what I’ve called Drug War I and Drug War II — brought an end to the Lochner Era, and to the United States Supreme Court’s interpretation of the Constitution as somehow limiting the government.

In spite of this, we have gained little.  Never did Benjamin Franklin’s words ring truer; we have given up nearly all our liberty, for less safety.

From the beginning, lawmakers debated fiercely whether law enforcement — no matter how well funded and well trained — could ever defeat the drug problem.  (Mendoza, supra.)

It can’t.  What it has done, however, is to bring our once-great nation to its knees. As former Alaska Senator Mike Gravel put it:

Look what happened.  It’s an ongoing tragedy that has cost us a trillion dollars.  It has loaded our jails and it has destabilized countries like Mexico and Columbia.  (Mendoza, supra.)

First, the Drug Wars broke our Constitution.  Then Drug War II broke the backs of our weaker southern neighbors.  Now the War on Drugs stands to break all our budgets.  Our governments can no longer support our anti-drug habit.

The problem with War, though, is that — at least for human beings — it’s the strongest of addictions.

Comments

• May 19, 2010, Don Waggoner writes: I have never seen anyone call Lincoln a dictator before. I have been advocating that position for years, and not because I am a Southerner. I am not sure he was the first to exercise dictatorial powers, however. I have always advocated that not nearly enough attention has been paid to the 9th Amendment. The USSC just glosses over it and acts as if it doesn't exist or has no meaning. Thank you for this post. You hit the nail directly on the head.
• December 20, 2011, Laurel writes: My partner and I absolutely love your blog and find nearly all of your post's to be exactly I'm looking for. Do you offer guest writers to write content for you personally? I wouldn't mind composing a post or elaborating on a number of the subjects you write related to here. Again, awesome web log!
• December 20, 2011, RickH writes: Laurel, thanks for your comment. All content on this website is written by me, since it represents me to the world.

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“[M]odern police forces are staffed with professionals,” Scalia said.

If Fresno police chief Jerry Dyer gets his way, well, if this ever was true — and I seriously doubt it ever was — it certainly will not be going forward.

Dyer says that the city is running out of money.  No surprise there.  His solution for dealing with it, however, is interesting: volunteers to take the place of trained police officers.

You’ve got to love the way the story starts:

Attention, Columbo-wannabes. Fresno Police Chief Jerry Dyer wants to hear from you — if you’ll work for free. (George Hostetter, “Cash-strapped Fresno police enlist volunteers” (May 1, 2010) The Fresno Bee.)

According to the story, Dyer proposes to use volunteers to “do some investigative police work,” including handling the investigation of vehicle thefts, vehicle burglary cases, possibly responding to commercial burglaries, and definitely would include gathering crime scene evidence.

Yoo-hoo!  Why watch CSI on television when you can play CSI in your own home town?

The story goes on to point out that this idea is so wonderful that

Using volunteers to handle jobs formerly handled by employees could catch on at Fresno City Hall and other local governments as officials struggle with declining revenues. (Hostetter, supra.)

Forget the fact that even police officers who have allegedly been properly trained make mistakes in collecting and maintaining the integrity of evidence all the time (not to mention evaluating it), what I want to know is how come if I want people to work for me for free, that will land me in hot water with the labor boards, but the city openly discusses firing paid employees, replacing them with unpaid volunteers and that’s not only okay, it’s lauded.

“There’s a lot to consider,” [Fresno Mayor Ashley Swearengin] said. “We’ve got to have a good system in place where we are recruiting and screening and training and monitoring those volunteers. But, potentially, it is a way to continue the service levels that our public is accustomed to while keeping the cost low.”  (Hostetter, supra.)

Yeah?  Well, let us cash-strapped business owners bring in a few unpaid “volunteers” and we’ll not only continue service levels our customers are accustomed to, we’ll dramatically increase them.  To heck with minimum wage laws.

Oh, and Justice Scalia’s professional police force?  If we thought it was bad before, imagine how bad things can get with a bunch of amateur Columbos and CSI-wannabes running around.

Comments

• May 2, 2010, Packratt writes: Hmmm... I wonder if this volunteer cop corps will get qualified immunity like sworn officers get when they bungle the evidence of a case and send the wrong person to jail? If not, I wonder if anyone is going to tell these volunteers that someone can sue their pants off, instead of the local government, if they screw anything up? Not that this would be a bad thing, might be a good incentive for these people to practice a bit more due dilligence than the typically immune police officer. Just a thought. .-= Packratt´s last blog ..Another Look at Police Transparency vs Officer Safety =-.

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According to the story, Berman is a former chief deputy district attorney for the Fresno County District Attorney’s office.  These days he’s a private attorney, handling both criminal and civil cases.  Quite successful at it, too.  And in 2008, he was named one of the Top 100 trial lawyers in California by the American Trial Lawyers Association.

Unfortunately, Berman’s troubled past muddies things up a bit.  Did the guardians of the justice center brown-shirts at the Madera County Superior Court want to search him because of his tainted past as a District Attorney?  After all, the only known security issue I’m aware of from Madera involved a Madera District Attorney who torched the building.

But, no, it can’t be that.  Despite the prior experience Madera has with lawyers from the Madera District Attorney’s Office, those lawyers are still exempt from the requirement that they be searched before entering the building.

It must be because he’s one of those nasty criminal defense types.  Who cares that attorneys are more carefully screened before being given a license to practice than are the brown-shirts at the Madera Superior Court?  Who cares that more police officers commit violent crimes against others on a daily basis than attorneys?

It’s not about safety, folks.  Don’t ever let yourself be fooled into thinking it’s about safety.

It’s about power.  The brown-shirts have it; the rest of us don’t.  It’s as simple as that.  As I frequently tell other people, the problem is that they have guns and most of us don’t.  And as another story in today’s Fresno Bee reminds us, they aren’t afraid to use them.

One of these days, lawyers are going to realize that by refusing to stand up for the Fourth Amendment because “we have other fights to fight,” we’ve gotten our own selves into this mess.  Perhaps if all the attorneys entering the Madera Superior Court decided now is the time to fight, no one would have to remove a watch just to gain access to justice be allowed in the building.

After that, we can start to work on the access to justice problem.

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Which is apparently why many law enforcement officers have so much difficulty with distinguishing between people they just don’t like or understand, and criminals.

According to a front-page story in the Fresno Bee today, the police are unable to distinguish between groups of people who share similar interests on the one hand, and members of so-called “criminal street gangs” on the other.  Well, they do make one concession, at least temporarily…for the moment:

[P]olice call Juggalos members of a gang — not on the level of the Bulldogs or Villa Posse, Fresno’s most notorious gangs, but a gang nonetheless.  (Jim Guy, “Are they a gang, or just clowning around?” (July 18, 2009) FresnoBee.com.)

So this new “gang” the Fresno Police Department has identified is not quite as bad as the Bulldogs or Villa Posse.  But they’re still a gang.  (And as almost any criminal defense attorney in California can tell you, many police officers, prosecutors and judges definitely cannot tell the difference between a “gang” and a “criminal street gang.”  But that’s for another article.)

It’s actually not entirely clear to which gang these mentally-challenged police officers believe Juggalos belong.  “Juggalos” is a name given to males; females have apparently been labeled “Jugalettes.” Basically, they are…

…young people who sometimes put on clown facepaint and wear clothing with the emblem of a running man carrying a hatchet — the logo of a rap label called Psychopathic Records. (Guy, supra.)

Other than this and the fact that, like other people do with their friends, they sometimes hang around together,

Juggalos also are responsible for fights, drug use and occasional property crimes, police say.  (Guy, supra.)

Folks, this is exactly why anti-gang legislation is — to put it as mildly as I can — pure bullshit.

Are Juggalos or Jugalettes responsible for these crimes?  Or are people who wear facepaint and know other people who wear facepaint responsible for these crimes?  Or are hominids with dark-colored hair who know other hominids with dark-colored hair responsible for these crimes?  What about creatures with skin sometimes seen in the vicinity of other creatures with skin?  Are they responsible for these crimes?  Maybe things that move upon the earth with two hands each containing five fingers and occasionally hang out with other things that move upon the earth with two hands each containing five fingers are responsible for these crimes.

How about none of the above?  It’s not Juggalos, or Jugalettes.  It’s not people who wear facepaint.  It’s not hominids with dark-colored hair or creatures with skin.  Or, at least, it’s not merely “things that fit those descriptions.”  Regardless of whether or not they sometimes hang out with others like them.  Human beings who actually commit crimes are responsible for crimes.  Individuals commit crimes.

This modern trend in American “justice” — and, really, there is no longer anything just about it — this trend away from the individualization of guilt is not simply a violation of the very foundational principles of this once-great nation, it is unsustainable.  Eventually, if we continue locking people up for longer and longer periods of time just because they happen to know other people with whom they share similar perfectly legal interests, we’re going to run out of prisons and the money to build and run them.

Oh, wait…that’s actually already happened.

And yet we continue, seemingly inexorably, down the slippery slope to almost total reliance on generalizations to determine who is committing crimes and how — and how long — they should be punished.

Although some degree of generalization is involved in all human reasoning, reliance almost entirely on generalizations seems a long way from the individualized suspicions that are meant to define probable cause.  (Andrew E. Taslitz, Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789-1868 (2006) 88; italics in original.)

Ironically, the case Taslitz cites for that principle was already hastening our slide over the edge of reason and down the slippery slope.  In Maryland v. Pringle (2003) 540 U.S. 366, the United States Supreme Court held that a man was properly arrested for committing the crime of possession of a controlled substance because he was a passenger in a car with some other people where the substance was found.  Mr. Pringle was a passenger in the front seat of the car.  When the driver was stopped for speeding, police searched the car and found cocaine hidden behind an armrest in the back seat.  Nobody “fessed up,” so the police just arrested them all.

Normally, this would be a pretty piss-poor reason to arrest.  You’re going to arrest everyone who was near the drugs, even though the drugs were hidden from view, because you don’t know to whom they belong? Yes, said the ignoramuses on the United States Supreme Court.  According to them, people don’t just get into a car containing drugs without knowing the drugs are there.  But as Taslitz states,

[M]y own life experience in high school and as a prosecutor shows that the contrary may often be true, that is, that sober people, users, and dealers can all be friends and yet, in certain settings, the sober ones are thoroughly unaware of their friends’ criminality.  (Taslitz, supra, at 88.)

And that, my friends, brings us back full circle to the stupidity of the apparent chain of reasoning that has lead the Fresno Police Department to believe that Juggalos, or Jugalettes, or people with labels that start with “J-U-G,” are gang members — worse yet, criminal street gang members (because the story states they are subject to “greater scrutiny and punishment when crimes are committed,” which is only true of criminal street gangs).

People who wear blue jeans may know other people who wear blue jeans.  Heck, you might even run into two of them talking to one another in public.  You might even be a person who wears blue jeans and who has friends who wear blue jeans.  These facts do not mean that every time someone who wears blue jeans commits a crime, you have some connection to the crime.  It doesn’t mean that if you later (god forbid!) commit a crime, you should be charged for the crime, with a gang enhancement added on because of the blue jeans.  The same is true for people who wear Oakland Raiders jackets, blue shirts, red Fresno State baseball caps, Girl Scout uniforms — heck, the same thing might even be true of guys who dress up in militarized uniforms, complete with badges and embroidered insignia, who share a common name, sign or symbol, and two or more many of whom commit crimes!  (See Penal Code section 186.22(f); “What is a Gang?” available at www.streetgangs.com/laws/definition_gang.html (last visited July 18, 2009).)

And it’s probably also true of music lovers who paint their faces and dress similarly to other such music lovers and are called, or even perhaps call themselves, “Juggalos” or “Jugalettes.”

It’s time to stop clowning around with the concept of justice.

It’s time to evolve beyond the mindset of primeval slugs who cannot tell the differences amongst individuals who commit crimes and individuals who don’t based on the idea that “they all look alike.”

It’s time to stop putting troglodytes into uniforms, slapping guns and badges on them, and pretending they have enough common sense not to shoot or lock us all up just because we aren’t one of them.

Comments

• July 27, 2009, Patent Baristas » Blawg Review: Melbourne in Spring Edition writes: [...] the top item is the “GateGate” fiasco circulating among the legal community as Fresno Criminal Defense writes about the connection between bigotry, prejudice, tolerance.   Simple Justice asks if: [...]
• August 12, 2009, Eric Paul writes: I agree with Mr. Horowitz. Most of these anti gang laws are bad police work at best and laziness and a disregard for the law at worst. I agree "individuals" who do the crime are responsible for that crime. Not the gang or group they may happen to belong to.
• November 12, 2009, Amy writes: There's no substantial difference (other than public perception/acceptance) between "Juggalos" and various other "fan groups" like Deadheads or Parrotheads... I'd even go as far to say that the difference is pretty minimal between subcultures like Emo, Punk, Grunge, etc. Sadly, it seems that "gang" continues to be a completely ephemeral concept.

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The beginning noises of the reception were drowned out by the buzz of a small airborne black-and-white vehicle.  I watched as the helicopter appeared to be repeatedly circling the yard in which I was standing. I could just read a few of the words on the tail.  One stood out in capitals: “POLICE.”

Definitions of Important Terms

Before going on, let’s get a few definitions out of the way.  I hate to pepper you with these, but I don’t want you to think I’m misusing words. So let’s take our definitions straight from a respected American English dictionary.

Merriam-Webster’s Unabridged Dictionary defines a “police state” as:

a political unit (as a nation) characterized by repressive governmental control of political, economic, and social life usually by an arbitrary exercise of power by the police and especially secret police in place of the regular operation of the administrative and judicial organs of the government according to established legal processes: a totalitarian state.

“Abitrary” means:

1: depending on choice or discretion; specifically : determinable by decision of a judge or tribunal rather than defined by statute

2  a: (1) : arising from unrestrained exercise of the will, caprice, or personal preference : given to expressing opinions that arise thus (2) : selected at random or as a typical example

b : based on random or convenient selection or choice rather than on reason or nature

A Wikipedia article notes,

The term police state describes a state in which the government exercises rigid and repressive controls over the social, economic and political life of the population. A police state typically exhibits elements of totalitarianism and social control, and there is usually little or no distinction between the law and the exercise of political power by the executive.

Let’s look at one more from Merriam-Webster.  A partial definition of “totalitarian” is:

1 a : of or relating to centralized control by an autocratic leader or hierarchy …
b : of or relating to a political regime based on subordination of the individual to the state and strict control of all aspects of the life ….

If you’re feeling energetic, you might look up “repressive,” “repression,” “repress” and “secret police,” also.

A “Police State” Does Not Require 24-Hour Lockdown

The helicopter circled for perhaps five, maybe ten minutes.  Eventually, it appeared to lose interest and buzzed off.  The reception began.  Toasts were made.  The helicopter was forgotten.

A lot of people think that a “police state” is something like Nazi Germany.  They hear or read words like “rigid” and “repressive” and they just assume it had to be something like that and not something like modern America.

In fact, most people who think that don’t actually know much about what it was like to live in Nazi Germany.

[W]ith the history of Nazi Germany, it has been tempting to paint pictures in stark black and white, clearly delineating good and evil — for was not the Third Reich the most thoroughly evil political system ever created?  (Richard Bessel, Life in the Third Reich, p. xvii (1987).)

Tempting as it is, to paint in black-and-white is nearly always a mistake.  That is particularly true when it comes to police states.  For one thing, as I have written elsewhere, police states do not spring upon the world fully formed.  They evolve from other forms of government.  Pre-Nazi Germany, as I have also noted elsewhere, was not altogether dissimilar from the United States of America.  It was a constitutionally-based democracy with clearly-delineated, constitutionally-protected rights such as freedom of the press and requirements of habeas corpus.  Hitler eventually did away with these rights — legally — “for national security purposes” and special courts were created outside the normal system for the treatment of the nation’s enemies, some of whom were citizens of the United States.  Only government-approved attorneys were allowed and the hearings were secret, again, for reasons of “national security.”  Sound familiar yet?

Unfortunately, our view of how Weimar politics worked is still very much outlined by the savage pens of [numerous writers], who depicted Germany as Teutschland, a swastika-emblazoned preserve of stiff monarchists, bloodthirsty generals, monocled industrialists, and saber-scarred academicians who somehow combined to produce the horror of the Third Reich….

Yet these observations completely obscure the essence of National Socialism, which amounted to a grassroots repudiation of Teutschland in the name of a renovated nation, the Third Reich.  (Peter Fritzsche, Germans into Nazis, p. 211 (1999).)

The Nazi tent was big enough for big business and workers, liberals and conservatives, those who wanted to be proud of their country and those who were just tired of what had come before.

A grassroots repudiation of the existing political parties.  Hmmm…  The United States is nothing like pre-Nazi Germany.

Josh Gets Detained…At Gunpoint

After the usual announcements, the toasts, the throwing of the bouquet and tossing of the garter, a few of the people began dancing.  I made my way to Hank, the groom, who was talking with a couple of other people.  As I approached, one of the newly-arrived guests was saying, “So I got out and they told me to just back up slowly with my hands above my head….”  Whether talking shop, testifying or testilying, law enforcement officers refer to this as an “extraction.”

The guest, “Josh,” was relating the story of how he almost missed the wedding reception when he was stopped by police down at the end of the street, less than a block away, who surrounded his car and ordered him out at gunpoint.

One cop pulled me over.  Suddenly, another car zoomed right in front of me and stopped.  Then another pulled up.  When I saw I was surrounded and I noticed in my rear-view mirror that an officer was drawing his weapon, I was like, “Holy Shit! This is serious!”

And he told himself he needed to stay calm and do whatever he was told. He wasn’t joshing.

What was so serious that Josh had to be stopped, surrounded and “extracted” from his car at gunpoint?  Apparently, Josh drives a gray Audi.  Apparently, someone, somewhere in Fresno, driving a gray car — Josh would later point out that, unlike his car, witnesses described the sought-after car as being without license plates — had been involved in a shooting.

He went on to explain that the police somehow managed to avoid shooting him long enough to find out that he was not, in fact, the “driver of a gray car” for whom they were looking.

Stopping and Detaining People in the Modern U.S. of A.

The United States used to have a concept known as “probable cause.”  The aforementioned dictionary defines that as “a reasonable ground for supposing that a criminal charge is well-founded.”  For a long time, this was the only ground for stopping drivers suspected of breaking the law.  More recently, stops have been permited under a less-restrictive standard of “reasonable suspicion.”

Without doing an exhaustive history of the terms, it is my recollection that during the evolution of “reasonable suspicion,” it was originally identified as being quite similar to “probable cause.”

The California Supreme Court has “distilled” the meaning of “reasonable suspicion” from decisions of the United States Supreme Court:

A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.  (People v. Souza 9 Cal.4th 224, 231; 885 P.2d 982 (1994).)

So what made it reasonable to stop Josh’s car one block from the wedding reception?  If you ask the officers, they had specific articulable facts.  The car was gray.  In light of the totality of circumstances — that is, they were looking for someone in a gray car who was involved in a shooting in Fresno and Josh’s car was gray — they had some objective manifestation that Josh may be involved in criminal activity.

Thus we arrive at the modern meaning of “reasonable suspicion,” which is pretty much “whether or not a law enforcement officer wanted to do it.”  (See the definitions above, particularly “arbitrary.”)  Simple.

And it simply provides us with an example of the very definition of a police state.

The Rise and Fall of the Fourth Amendment

The Fourth Amendment of the United States Constitution was intended to ensure that the government did not arbitrarily stop and search people.  The Amendment was added to the Constitution because people were concerned that the government would eventually forget that it was deliberately created with limited powers. Our Founders feared the government would then think it had uncontrolled power over citizens so as to stop and search anyone, anywhere, anytime, for anything.

You see, before the United States government existed, “law enforcement” officers in America — British soldiers and tax collectors — would go into homes and businesses and search people with “general warrants.”  The Excise Act of 1754 created a situation where authorities had unlimited power to interrogate people about how they used things that had been imported to America.  There was a “colonial epidemic of general searches.” It was the resistance of Americans to this sort of thing which resulted in the Revolutionary War and the Declaration of Independence which ultimately allowed for the creation of the United States of America.

What happened to Josh — what happens to nearly anyone who comes into contact with the police today — is exactly what caused George Washington, Thomas Jefferson, Thomas Paine and thousands of American colonists to fight a war against the British.  The authorities surrounding and stopping gray cars with license plates and extracting drivers at gunpoint because someone in Fresno driving a gray car without license plates was involved in a shooting is arbitrary.  Arbitrary stops by the police are wrong and unconstitutional.

Yet arbitrary seizures like this occur in Fresno practically every day.  Normally when you hear about them, you don’t think twice because in the stories you normally hear, the police got the bad guys.  Or maybe you just accept it as part of the price of going into a courthouse or other government building.  Once or twice in the decades before this became normal, someone came in with a weapon.  There’s a saying that even a blind squirrel gets a nut once in awhile.  But if the authorities can search whoever they want, whenever they want, without a warrant, they’ll find more nuts.

That’s what happens in a police state where police arbitrarily utilize their power to control the populace.  The fact that they sometimes — maybe even often — catch the bad guys does not justify stopping anyone who might be one of the bad guys.  All of us might be one of the bad guys.  A lot of people drive gray cars.

At one time, the courts of the United States prevented such things.  Where the Constitution prohibited the officers from making arbtirary stops, the courts enforced the Constitution.  Increasingly, the courts either “interpret” the Constitution in such a way that the Fourth Amendment means nothing, or they say that when law enforcement ignored the Constitution, it was “harmless error,” which amounts to the same thing.  (Think about it, Judge.)

We Have Met the Enemy And He Is Us

Almost a half-century — almost fifty years! — ago, a great civil-liberties editorialist for The Washington Post, Alan Barth, said,

Free men can never rely upon courts alone for the preservation of their freedom. Courts can give warning of danger. But they are really powerless to protect us from ourselves. They can remind us of our heritage. But they cannot preserve that heritage for us.

Today our courts no longer even give warning.  They’re not only powerless to protect us from ourselves, they’ve joined us on the march to totalitarianism.

But we need to remember that just as not every car is driven by Josh, not every car is driven by criminals.  Unless we change things, unless the Constitution is re-adopted and once again honored, one of these days, you may be surrounded and “extracted” from your car at gunpoint.

Let’s hope you do as good a job of keeping your head as he did.

Recommended Reading

• Richard Bessel, Life in the Third Reich (1987)
• Peter Fritzsche, Germans into Nazis (1999)
• Ingo Müller, Hitler’s Justice: The Courts of the Third Reich, with an introduction by Detlev Vagts (1992)
• H.W. Koch, In the Name of the Volk: Political Justice in Hitler’s Germany (1997)

Comments

• May 31, 2009, capmotion writes: You should also include "Mean Justice," by Ed Humes, on your reading list; the Muller volume has appeared in my own pleadings a few times over the years, pissing some judges off. It should be recalled that the present proactive professional policeman was foreign to the Framers; they had been evicted in #10 of the Declaration and had not returned until after the Civil War, when it was learned that "emergency" and "war" could justify erosions of liberty and constitutional theorems. So long as the post-New Deal/Great Society public naively believes that proactive police exist to protect them, and that constant protection is a desirable value in a society supposedly dedicated to liberty, the Statist/police state-ism you report here will continue, and increase. Cops lurking in the shadows, or hovering in the sky, waiting to find "violators" on whom they can pounce, is anathema to the regime of Liberty established by the Framers and should be undone, or rebelled against.
• May 31, 2009, RickH writes: Wow. I'm always hoping someone will read and feel compelled to comment. To have Captain Motion comment is something I wouldn't have expected! (Thank you.) The book by Ed Humes can be found by clicking the link to Mean Justice. I'll have to get a copy now myself.
• May 31, 2009, S. Siler writes: The problem is that the people at large have given away those rights afforded by the Constitution for (false) "safety" and nobody (or very few) even realize(s) how far it has gone. It has gone very far, indeed. Only a miniscule few are aware and/or willing to attempt to regain the freedoms secured by the Founding Fathers, and those must be wary of reprisal.
• May 31, 2009, Daniel san writes: Rick I love ya brother but you have to admit that if you were on the other side of the gun, this is an easy mistake to make and tensions run high when cops are looking for shooters. I think the problem is that our PD's don't do enough to reign in the uncontrolled testrone and adrenaline that cops have. Too many get on a huge power trip and high horse and lose touch with reality and the fact that they've made plenty of mistakes in their own lives. We're all people and all have the same goals - we just want to live our lives in peace and enjoy them. Some cops are like pitbulls that have been left in the cage far too long, but I think that most are like loyal German Shepards, trying to do what's right. Still, this sucked for Josh and I think Fresno PD owes this guy a HUGE apology. If they'd simply treat the taxpayers that allow them to exist with the same courtesy as they seem to exhibit to each other, and not lose sight of the fact that without our consent, they do not exist, things could improve greatly. I do agree that if they stay on the current overzeaolous "police state" course, eventually that will lead to rebellion, anarchy and their eventual demise - thinking WAY down the road but that is the eventual outcome of overzealous "protectors" who lose sight of their original missions - to protect and SERVE. They serve US - not vice versa.
• June 1, 2009, J Dyer writes: Unreal.
• June 1, 2009, Eric Essman writes: Mr. Horowitz: Once again painting most police officers as Nazi like hooligans. God help you if you are ever in the position of having a burglar break into your house in the middle of the night and have to call a cop. Yes, cops are human. There are bad ones and good ones. But there are far more good ones than bad ones and most people realize that. Why don't you ever focus on the real threats to society Mr. Horowtiz? And the threats are not the Police. I feel much more threatened by out of control gang bangers wanting to prove themselves by randomly shooting some unsuspecting passerby. I feel a little sorry for Mr. Horowitz. He sees black as white and up as down. In a true Police state Mr. Horowitz would not even be allowed to write a blog like this. The fact that he can engage in writing a blog such as this is evidence that in fact we "do not" live in a Police state.
• June 1, 2009, Eric Essman writes: Sometimes I wish there was a state or nation that people could go to that dislike the Police so much. They could go there and part of the social contract would be that there is no Police force. I think that what we would find, is that the vast majority of people who went to live there would be begging the societies they came from , that did have an organized Police force to take them back as quickly as possible. No sane person wants to live in a state of anarchy. The Police are not always perfect but they do a very very difficult job and put their lives on the line to protect us and our loved ones. I think that once in a while it would be nice for the public to thank them and tell them that they are appreciated rather than holding them up to near constant ridicule. I find it rather telling that when Mr. Horowitz see's a Police helicopter his first reaction is to become frightened or feel a sense of doom. My first reaction upon seeing a cop is usually a feeling of relief and appreciation. We are all different in that respect.
• June 1, 2009, Ray writes: > If you ask the officers, they had specific articulable facts... Thus we arrive at the modern meaning of “reasonable suspicion,” which is pretty much “whether or not a law enforcement officer wanted to do it.” There will always be some element of "discretion" in determining how much something makes sense. It's hard to draw a clear line between capricious and reasonable. An incident like this with the grey car involved in a shooting could fall squarely into the grey area between the two. I have to believe that if they're putting the resources of a helicopter into a particular area that there are elements of the situation encouraging them to think that this will be useful to the purpose of finding the suspect. In this regard I think their actions might not be considered arbitrary. I doubt the presence of the wedding had anything to do with their thinking. ("So what made it reasonable to stop Josh’s car one block from the wedding reception?") It's certainly not inconceivable that a police officer could be influenced by any of a vast array of unreasonable biases in their work, or worse yet could be influenced by any of a vast array of selfish, unofficial motivations. I bet it happens all the goddamned time. This extraction was as close to proof of such malfeasance, however, as maybe Josh's car was reasonably suspicious. Part of the disregard for people that facilitates abuse of authority comes from a feeling of separation. "Us v. them". Authorization for physical dominion over people is doubtlessly a large factor in developing the "us v. them" mindset. You can't eliminate this factor, but you can maybe lessen its effect or find other ways to discourage the separateness mindset. Determining all the salient factors and counteracting them as you can sounds like a good idea. Coming at the problem of totalitarianism with an antagonistic mindset towards the specific elements that you see as problematic (i.e., the police) is an understandable reflex. And it makes sense at first blush. But if you agree with me that an "us v. them" mentality is a substantial factor in making the bad police mindset, you might consider coming at rehabilitation through a method other than condemnation and rejection. A disturbed child might intend you harm out of an immature or unreasonable reaction to past experience -- say they spent time in an abusive household and thought love was shown through scorn. Their misbehavior would not be stopped through condemnation. I don't want to deny you the right of expressing your feelings about incident. It's very important that you do so. I recommend you find good ways to do so. Be careful not to use a way that exacerbates the situation. Can you imagine having the police officers say "We're very sorry, sir, for the inconvenience and grief you might be experiencing from this incident. We're doing the best we can in service of all the people of our city. If you have any comments at all that you'd like to share, please contact me at the number on my card. Good day."? Can you imagine them being more inclined to say these things after telling them they're making a police state?
• June 1, 2009, RickH writes: Mr. Essman, I don't recall anywhere saying that I became frightened or felt a sense of doom when I saw the helicopter. I continue to approve your posts so that they can show up here, even though I believe you don't read the articles completely before you write your responses. You and I do not see things the same. This is clear and I understand that. Lots of people don't see things the same as you do; lots of people don't see them the same as I do. I do not mind that you disagree with me. But I will ask you to quit misrepresenting what I've stated. Make your disagreement and honest one. If you cannot do that one thing — that is, stop stating or implying that I've said things I have not said — then I will no longer approve your posts. I am not a government. You don't have constitutionally-guaranteed rights to post on my blog. I set up comments for honest and open, thoughtful discussion. That does not mean you have to agree with me. It does mean you should quit pretending that I believe or say things that I neither believe nor say. Besides, you look like you can't make up your mind. When you do understand what I'm saying, or you like it, you have a polite response, like you did on "Bad Cop, uh...Bad Cop." When you don't understand, or when you don't like what I've said, you make false statements and imply or make negative statements about my personality. The public — me included — does give the police accolades when they deserve it. As a defense attorney, it is my job, with requirements set down by the State Bar of California, to make sure the State and its agents (law enforcement officers, DAs and judges) follow the law and to make them prove their cases. Too often, they do neither. But people with attitudes like those you've expressed here want to "give them the benefit of the doubt." The result is that we have civil rights ignored and over 100,000 innocent people in jail or prison. You may not like it, but the Founders of this nation actually did not establish police departments (those didn't come along until 1838 in Boston, 1844 in New York and 1854 in Philadelphia). In fact, I think they would not have wanted them. We don't have a state of anarchy without police departments. If we did, they'd have been in a state of anarchy until the mid to late 1800s in most of the United States. Yet that wasn't the case. And, in fact, one can make an argument that the Founders would roll in their graves over the idea that we have police departments. They didn't believe in "standing armies in peacetime" and would surely have seen police departments as standing armies. Believe it or not, our Founders thought people should have a huge amount of freedom to make life choices which we currently do not have. Our Founders knew that power has a corrupting influence on everyone, practically without exception. At any rate, again, disagree with me if you wish. Make logical arguments against what I'm saying. Try to back up those arguments. That's what this comments section is for. I don't ask that people come here just to praise or agree with me. I also don't ask that they come here just to tell me how stupid they think I am, or how twisted, or how anti-police (which isn't even actually true), or how [fill in your favorite insult]. What I hope is that there will be honest discussions. Because the problems with our "justice" system are significant. DAs, judges and myself periodically have discussions in which they agree with that last statement, even though I suspect it will offend you. And the thing is, the problems will only be addressed and, hopefully, fixed or at least improved, if we have honest dialog about the best ways to do that. So stop twisting my comments. Disagree? Fine. Just stop twisting my comments to imply or state that I've said something I didn't. Or, I'm sorry, the alternative is that, yes, I will stop your posts from going through. Not because you disagree with me (as I've now said repeatedly, because I think you have a hard time hearing this), but because you cannot have an honest dialog without being insulting and implying insulting things. This is my last word on the subject. I'm not going to get into another long argument with you. If you are incapable of at least being honest about what I've said, your posts will not be approved. Thank you.
• June 2, 2009, Ray writes: The police saved Mr. Essman's life. It's impossible for him emotionally to accept devaluation of the police. It's critical for him emotionally that others validate his deeply-carved gratitude. Run afoul of either of these things and he'll stumble out of bounds into irrationality, misperception, and mischaracterization. Lest your blood pressure and health be affected, I recommend you grasp these mechanisms before you push for him to behave. Frustration caused by people not playing by the rules (being irrational, twisting words)... is the same thing as the frustration caused by attachment to the idea that people must play by the rules. We've all got our biases. It's a shame we fight one another about them. It only entrenches us.
• June 3, 2009, RickH writes: Honest and open discussion is welcome. Continually twisting the truth, stating those with whom you disagree have said things they have not said and then personally attacking them on that basis will not be tolerated any longer. I won't allow it if someone does it to him; I won't allow it if someone does it to you; I will no longer allow it if it's done to me. As I've said, disagreement is one thing. You and I, for example, have not infrequently disagreed with one another when we talk about philosophical or social issues. We don't attack one another as part of the debate. In the old days, people were expected to argue passionately, but reasonably and, if not exactly politely, honestly and without rudeness. Today, apparently, this can only be accomplished by posting "Terms of Use" to remind people about ordinary social courtesy and give them a heads up as to what will not be approved for posting, then simply enforcing it. It would appear I'm going to have to go the way of many other blogs and billboards online and put up a "Terms of Use" document.
• June 3, 2009, Ray writes: As the person with power over this blog it is your ability to allow or disallow. As the person who exerts the effort to make this blog happen, I'd say it would be fair for you to allow or disallow as pleases you. I know you're a respectful person with an interest in principles and shared benefit, so when you give Mr. Essman a fair shake it's unsurprising. I know you're generous, too, so the graciousness you've displayed so far with giving him repeated opportunity to fix his behavior is unsurprising. Well, you've actually given him a lot of slack. I don't dispute that you've the right (in the name of fairness) to squelch Mr. Essman. For everyone involved you probably should. I'm just pointing out that you can't expect him to be reasonable. I wanted to tell you what the mechanisms were that caused him to be unreasonable. It's difficult to navigate the emotions of other people (and ourselves, really), and rather than do that we set ground rules for behavior. Those ground rules feel pretty justified -- requiring people to be reasonable and respectful -- and they ultimately have good practical effect. I say employ them when you need to and when you can. Bear in mind that requiring reason and respect, or whichever Terms Of Use you choose, is only one way to facilitate discourse. We should note that there are situations in which we are not the power that has the ability to dictate the rules. I would caution against adopting a Terms Of Use mindset as a universal perspective on communication. "No, honey, we went out to dinner at least once this year and I refuse to discuss the matter until you refrain from hyperbolics." "I'm sorry, sir, but if you cannot address me in a more respectful tone I will not even consider your demand for my wallet." Terms Of Use help in certain scenarios, and hurt in others. Ban Mr. Essman if you so feel. He's disrespectful, he persistently misunderstands you though you've made yourself clear, and he is not contributing positively to the discussion such that it benefits anyone except himself. He's primarily driven by need to vent his feelings, and reason is only being dragged in to serve that end. When the driving force is feelings rather than an urge to uncover truth and logic, you don't get rationality, you get rationalization. Banning Mr. Essman would help your blog's quality, with benefit to you and your readership at large. It will not, however, help your relationship with Mr. Essman. If you want to help your relationship with Mr. Essman, validate his feelings. Positively acknowledge whatever degree of truth there is to the things he says about a) how the police are valuable, b) how his gratitude makes sense. He wants to be reasonable, but he can't if you contradict these things.
• July 1, 2009, RickH writes: Now here's some irony for you: When I was talking to a couple of lawyer friends about this article earlier today, we pulled it up on the Internet. Imagine my surprise at seeing a typographical error — or was it merely proof of my point? — when I saw these words:

  ....some of whom were citizens of the United States.

  That was supposed to say, "of Germany." But, as I noted, the similarities are great. While writing, I confused the two!
• October 22, 2009, Nothing to See | RickHorowitz writes: [...] Alliance kindly asked permission to reprint in their paper. (I can’t remember if it was this one, or this one, or some other [...]
• December 18, 2009, How Police States Are Born | Probable Cause writes: [...] states, as I’ve said before, don’t spring into existence fully-formed, as Athena did from the forehead of [...]
• December 31, 2009, The Obligatory End-of-Year Post | Probable Cause writes: [...] Just try to argue a suppression motion in a California court today!  Want to know what the new rules are relating to search and seizure?  Read this and this. [...]
• March 20, 2011, regina m martinez writes: hello my son wasa a victume twice buy 9 to 10 boy jumping him only two got him on 3-4-11 also vidoing it and put on u tube . school and ploice took there time thatthis boy p,lanned another attack on my 16 yrs old son got info on witch way he walk and again beat my son again ib was at hospital this my child got two stiches on eye lid and bloody eye .the police say because my son had to aggree to fight again becausev there was no way out both boy planned it so now one get arrested for this why is this happening there blaming my son to like hell get arrest to for this if i keep on ,were is justes in hate crimes not even school will help me and these kid are at my sons school waiting to beat him first time two block then two block from home they planned thios to each time even vido tape it both time a put it u tube it so clear these boys planned it is it couse some are wight kids some were 17 to 19 yrs old my sons only 16 and the victume why dont they care
• November 21, 2011, Jess Loflin writes: It would be absolutely amazing if you added a share button on your site for social networking such as Facebook. This information would be great to share with people. Thanks!! -Jess
• January 2, 2012, Godwin's Constitution | RHDefense: The Law Office of Rick Horowitz writes: [...] alluded to above, even Nazi Germany didn’t spring fully-armored from the brow of Zeus. There really was a time in Germany, before the reign of the Nazis, in which [...]

Where did he find jeans with pockets in the first place?!

If we keep on the path we’ve been on, this is the world of the future.  Metal detectors at the entrances to retail outlets and other public venues.  And because people can easily hide things in pockets, clothing manufacturers bend to “the will of the People” and stop making pockets.  Everyone — men, women, children — will carry their identification cards badges on the outside of their clothing and any personal items they insist on carrying will go into easily-x-rayed “purses” to speed the process of going through “detection lines” as they move around town.

Friday night, shots were fired outside a Bullard High School basketball game by a still-unknown someone.  By today the article with the large headline reading “Metal detectors at FUSD gyms?” noted that:

Gunshots fired outside a crowded gymnasium have prompted the Fresno Unified School District to consider using metal detectors at high school basketball games.  (Pablo Lopez and George Hostetter, “Metal detectors at FUSD gyms?” (January 25, 2009) p. B1, col. 2, above the fold, at the time of this writing, available online here.)

Now, the school district is arguably a part of the government.  And the government is arguably bound by the United States Constitution.  And the United States Constitution arguably protects citizens against warrantless searches via the Fourth Amendment.  So, arguably, the use of metal detectors outside a school gymnasium would be illegal.

Only since the United States does not honor the Constitution in spirit, but only in word — and then usually only in Orwellian attempts to justify wars to protect our freedom — it’s not.  That is, it’s not illegal; it’s probably not even arguable except for idiots like me who still prefer pockets to purses.

But you don’t have to go there if you dislike being a submitizen, I was told when I objected to metal detectors out front of the courthouse.  True that: I could change careers.  Only what if I ever get summoned for jury duty?  Or, worse yet, some blowhard-in-blue thinks I dissed him and charges me with a violation of Penal Code section 148 (dissing a police officer — you didn’t know that was illegal, did you?).  And you don’t have to go to a ballgame at Bullard High School.  Going places isn’t a right; it’s a privilege.

Uh, yeah.  Tell that to our Founders.  At least in their day, the tyrannical fascists against whom they fought were using written general warrants authorizing indiscriminate searches!  (That’s why they wrote the Fourth Amendment after they decided that generalized unwarranted searches were worth shooting people over and then did shoot enough of them to be able to write their own Constitution.)

Moreover, as the idea of using metal detectors in more and more places spreads, there will be more and more places one doesn’t “have” to go.  Eventually, some malignant wit will be telling me I don’t have to go to the grocery!

And what is this for?  Why this wholesale acceptance on the part of submitizens with respect to metal detectors and warrantless searches?  Well, didn’t you read the Fresno Bee?  Someone fired shots outside the gymnasium!

Okay.  What am I missing here?  The shots were fired where?  Outside the gymnasium.  Outside.

Someone want to explain to me how metal detectors are going to help in this situation?

“Yes,” I hear former-statutory-rapist-cum-police-chief Jerry Dyer saying, “but they could have fired the shots inside the gymnasium!”  We need metal detectors at the door now because the fact that someone fired shots outside the gymnasium last Friday means someone could fire shots inside the gymnasium some day in the future.

If this is the line of reasoning folks, then the grocery store scenario I started off with here is not all that absurd; it’s closer than you think.  And guess what?  The grocery store isn’t even arguably a branch of government.  So the United States Constitution does not prevent the grocery store from requiring you to submit to a search before being allowed to enter.

In the 1700s, there were occasional shootings in bars and other public gathering places.  Yet, for some reason, our Founders did not see fit to install security checkpoints at the entrances.  Hell, for some inexplicable reason, they allowed people to walk down the street with guns strapped to their hips, or even concealed under their jackets.  In broad daylight, no less!

Maybe they mistakenly thought the Fourth Amendment actually meant something.

Once — holy Moses! — somehow, someone even managed to get close enough, in a theater, to draw a bead on the back of a President’s head and blow a hole in him!  (And still the Fourth Amendment remained in place.)  Do you seriously believe the world is a more dangerous place today than it was in the 1700s?

Actually, as it turns out, the world is a more dangerous place today.  But it’s only indirectly because of submitizens.  The direct danger to our world today is the government’s increasing refusal to recognize the limitations placed on it by we, the People, in the United States Constitution.  Our submitting to the government flouting the law only encourages a lawless government.

This is the main danger, first, because the government is increasingly one of men and not of law; the government itself is increasingly the enemy of the People, beneficial only to those actually wielding governmental power.  Secondarily, it is true because the disrespect for law demonstrated by the government sets the stage for a disrespect for law among others.  When enough people no longer respect the law, we dissolve into de facto anarchy.

In that kind of world, we actually have to hope grocery stores do install metal detectors, hire armed guards and require us to empty our pockets before entering.  In a lawless society, there has to be some place we can find a little safety.

Now, if you’ll excuse me, I’ve got to go buy a purse.

Comments

• January 25, 2009, JP Sweeney writes: There is no one that would go to the trouble of reading this without agreeing.
• January 25, 2009, RickH writes: Without agreeing to what? That we need metal detectors outside the gym? That the way we're going, we're going to have metal detectors outside of grocery stores? That the world is more dangerous today than in the 1700s? That the government is the danger? There were a lot of questions in this post. I myself strongly doubt everyone would agree with all my points. In fact, I wrote it because I already find myself disagreeing with FUSD concerning the need for metal detectors, particularly based on this incident.
• February 27, 2009, Thomas Jefferson Bradford writes: just wanted to say i admire your work.....i was raised in Fresno and was a bouncer at a biker bar that Jerry Dyer used to frequent when he was a young officer. Boy i could tell you alot of information, if your ever interested i would love to buy you lunch and share some things about the P.D. that you may , or may not know. peace...and may your Gods Bless you... p.s. im in Fresno right now.
• May 12, 2009, Eric Essman writes: Is the world more dangerous now than in the 1700's? Is that the question you posed? Let's see, we have fully automatic weapons in more hands than at any time in history, weapons that did not exist in 1700. We have the threat of dirty bombs and nuclear bombs. Did those threats exist in the 1700's? The question kind of answers itself.

Related posts:

• The Very Definition of a Police State
• Scaretistics
• Submitizens II

Unless you’re a police officer.

Last week, taking another whack at the exhausted and near-death Fourth Amendment, the United States Supreme Court indicated that if the police arrest and search someone because of “mistakes [which] are the results of negligence,” it’s okay.  No harm; no foul.  After all, the victim of the police department’s negligence was a bad guy.  The police were doing something the Constitution forbids them to do, but it’s for a good cause.

It is rather ironic that the ascendancy of right-wing Christianity with its hardcore “law and order” crowd in the United States has resulted in the increasing tendency of the government to ignore the laws of our land, particularly when we think following the law will result in a bad guy escaping punishment.  As far back as Genesis, no less an authority than the Bible laid down the principle that it was better to let guilty men escape punishment than to act in a way that could harm the innocent.

And Abraham drew near and said, Wilt thou also destroy the righteous with the wicked?… That be far from thee to do after this manner, to slay the righteous with the wicked: and that the righteous should be as the wicked, that be far from thee: Shall not the Judge of all the earth do right? And the Lord said, If I find in Sodom fifty righteous within the city, then I will spare all the place for their sakes…

And he said, Oh let not the Lord be angry, and I will speak yet but this once: Peradventure ten shall be found there. And he said, I will not destroy it for ten’s sake. (Genesis 18:23-32.)

Maimonides, a 12th Century Jewish philosopher, said,

it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death. (Moses Maimonides, The Commandments, Neg. Comm. 290, at 269-271 (Charles B. Chavel trans., 1967).

This principle subsequently became known in legal circles as “Blackstone’s Ratio,” after Sir William Blackstone, an English jurist (lawyer) and professor, published the principle in his famous “Blackstone’s Commentaries.”

Blackstone, of course, had significant impact on the Founders of the United States. So it’s no surprise that even Benjamin Franklin stated,

it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer. (9 Benjamin Franklin, Works 293 (1970), Letter from Benjamin Franklin to Benjamin Vaughan (Mar. 14, 1785).)

But modern Americans know better than our nation’s Founders…than the explicators of the foundations of our religions…than the G-d they supposedly worship. Today, our fear that someone might get away…that a single death could be averted…that accused people have too many rights and “victims” too few, has lead us to overrule the wisdom of the ages.  “Judge not, that ye be not judged,” has become, “Judge.  Quickly.  Before they get away.”  And harshly.

Prosecutors limit discovery, refusing to divulge evidence until trial, if at all (even though California law says “thirty days prior to trial”), for fear the defense will investigate and find a way to show why innocent acts are innocent because their clients are innocent.  Trial by ambush is the new approach.  It matters not that this makes prosecutors — representatives of The People — lawbreakers.  The government is above the law.

But believe it or not, there really is a problem with this philosophy.  The root of it is “might makes right.”  In fact, not only is that the root of this philosophy, it is its totality.  Nothing else matters, except who is big enough to make everyone else “do as I say, and not as I do.”

Thomas Paine, one of the driving forces behind the Revolutionary War which produced the United States, said:

In America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.  (Thomas Paine, Common Sense (Larkin, ed. 2004) p. 75, capitalization and italics in the original Larkin edition [Paine's original publication date is 1776].)

But once the government “of laws, and not of men” (John Adams, “Novanglus Papers,” no. 7.—The Works of John Adams, (ed. Charles Francis Adams 1851) vol. 4, p. 106) has lost respect for the law, why should anyone else respect it?

Comments

• February 1, 2009, Jo Nathan writes: I've read a little about the Herring case, and the exclusionary rule. My take on it is that SCOTUS has blinders on, focusing on deterring police violations of fourth amendment rights. Why should not the exclusionary rule be invoked to simply protect fourth amendment rights, period? That is, whether it is the police, the clerk, or the judge; shouldn't there be a deterrent regardless of the proximate cause of the invalid search and/or seizure? Am I missing something?
• February 1, 2009, RickH writes: I'm with you on that. It blows my mind that the government thinks by carving itself up into little chunks and letting non-law-enforcement chunks violate the Constitution, they're honoring the Constitution. The Constitution is a limitation on government. Period. Doesn't matter which part of the government is doing the violating, the exclusionary rule should apply. But even better are the people, including courts, that seem to argue that "well, yeah, the Constitution says government can't do this, but doesn't say that there should be any penalty, so we shouldn't impose one in this case because we don't like the result that would flow from that."
• February 11, 2009, Jo Nathan writes: RickH - you are so right: "well, yeah, the Constitution says government can’t do this, but doesn’t say that there should be any penalty, so we shouldn’t impose one in this case because we don’t like the result that would flow from that.” But that is why the exclusionary rule was created in Weeks; if there is no penalty, there is no Fourth Amendment. And the way it is now, penalties via exclusion only crop up in the case of criminal prosecutions. Who can you call when your Fourth Amendment rights are being violated and you're not charged? The Police? I think not; they spend most of their time figuring out ways to sidestep the Fourth. Bivens actions are rarely possible when illegal surveillance is performed, as one can't get evidence. The idea that civil suits provide remedies is a SCOTUS figment.

Related posts:

• Shooting Holes in the U.S. Constitution
• Three-Thousand and Zero
• Great Job! You’re Fired!

The funk started not so much because of the rules implemented by the court — the day California courts honor the United States Constitution will be a surprising day indeed! — but rather because of the reaction of other defense attorneys to my opinions regarding the newly-implemented rules.

Fear Does Not Trump Inalienable Rights

I alluded to an “attorney” standing nearby on the first day I encountered the new policy of searching, without probable cause and in violation of the United States Constitution’s Fourth Amendment, all attorneys entering the courthouse.  This criminal defense attorney derided me to the bailiff for my comments about the unconstitutionality of the act.  And, soon, I would learn he is not the only criminal defense attorney who finds no problem with searches lacking in probable cause “because of the safety factor.”

A public defender, for whom I’ve always had the utmost respect, upon hearing that I was researching how to sue the presiding judge for this violation of my civil rights, indicated that he was in agreement with the policy.  The reason?  One of his clients, he said, once tried to smuggle in a weapon which he was allegedly going to use against the attorney.

Now I understand someone not wanting to be attacked and injured (or worse) by one of his clients in a courtroom.  Frankly, I would not like to be attacked by a client, either.  (Just one of many reasons I listen to, explain things and fight hard for my clients.  But, then, as another criminal defense attorney explained to me, I’m a freak.) Heck, for some reason, I don’t want to be attacked by anyone, either inside or outside of a courtroom.  Maybe it’s a Freudian thing, or perhaps I was dropped on my head at birth by some slippery-handed obstetrician.

But here’s the thing:  My fear of being attacked by some idiot with a weapon does not justify the abrogation of everyone else’s constitutional rights. At least not “inalienable” rights such as those protected by the Fourth Amendment. In fact, the concern our Founders had for the possibility that someone might think some governmental function — like keeping us safe — would trump inalienable rights is exactly why the Fourth Amendment was enacted.

Avoiding the Violation by Avoiding the Court Does Not Work

And it’s not as simple as one guard suggested when he said, “So don’t come in.”  Setting aside the fact that I’m a criminal defense attorney who makes his living by trying to convince the courts that our laws and legal system should be more than a pretense, there are times when I’ve been summoned to the courthouse for jury duty.  You cannot refuse jury duty on the grounds that you do not wish to leave your constitutional rights at the front door.

Similarly, for people who have been ordered to appear in court, refusing to enter on the grounds that unconvicted citizens of the United States are entitled to Fourth Amendment protections can and will result in an arrest warrant being issued.  Even mere witnesses summoned to testify will find themselves subjected to a body attachment and jail time for the willful failure to abandon their inalienable rights and obey the summons.

The Times, They Aren’t A-Changin’

This morning, one of the court’s enforcers commented that “these are different times.”

In one sense, that’s true.  Our Founders would never have permitted such generalized searches without particularized grounds for believing the person to be searched had committed or was about to commit a crime.  They well understood the tendency of the government to abuse its power — a limited power given to it by individuals such as myself — and to begin to treat citizens as chattel, as Submitizens.  In fact, under the same conditions, our Founders came up with a plan: they started shooting the representatives of the government which violated their rights to privacy and to be free from unreasonable searches and seizures.

The fact that we willingly submit to the government which was created for the limited purpose of ensuring our freedom from the very acts of government which the British forced on early Americans and which are now being forced upon us is proof indeed that times are different.

This, however, is not what the enforcer — who, as another “defense attorney” pointed out, was “only following orders” (where have I heard that before?) — meant by saying “these are different times.”  He mistakenly believed that we live in more dangerous times.

In fact, there were significant threats faced by the early settlers which we do not face.  The governments — yes, the plural would be appropriate — of America were under constant threat of being overthrown.  Americans constantly were concerned with the possibility of having other countries — including most notably Great Britain — impose their will upon our as-yet-unborn nation.  Prior to the establishment of the United States, spies such as Benedict Arnold and Major John André plotted against us.

On a less politically-driven basis, settlers in America had to deal with Indians, the French, press gangs (which kidnapped Americans from coastal cities and forced them to work aboard foreign ships), bands of thieves threatening travelers, stagecoach hold-ups, bank robberies and more.

Early Americans Feared Unrestricted Government More Than Other Threats

In spite of these things and the ease with which unrestricted powers of search and seize would have increased the safety of Submitizens, the American people almost refused to approve the formation of the United States by refusing to approve the United States Constitution because it did not acknowledge that the government was restricted in how far it could go towards, among other things, searching its citizens.  (Back then, we were not yet Submitizens.)

It is…clear that they viewed the federal group as the greatest potential threat to their rights and freedoms, which is precisely why the Bill of Rights contains so many express restrictions on the power of government officials.  (Jacob G. Hornberger, Liberty, Power and the Constitution (September 4, 2006) Freedom Daily/The Future of Freedom Foundation.)

Early Americans knew that,

A democratic government that respects no limits on its power is a ticking time bomb, waiting to destroy the rights it was created to protect. (James Bovard)

Give Them an Inch & They’ll Take Your Freedom

We would do well to remember what our Founders knew when they — in the midst of a world full of people and nations which sought their destruction as a free nation and plotted their complete subjugation — enshrined our pre-existing rights to be free from such searches as those daily forced upon Submitizens today.

Our personal freedoms are not what threatens us the most.  What threatens us the most is our failure to recognize just how completely our own government works to undo our constitutional protections.  Bill Clinton exemplified this threat in a 1994 MTV interview:

When we got organized as a country and we wrote a fairly radical Constitution with a radical Bill of Rights, giving a radical amount of individual freedom to Americans, it was assumed that the Americans who had that freedom would use it responsibly….What’s happened in America today is, too many people live in areas where there’s no family structure, no community structure, and no work structure. And so there’s a lot of irresponsibility. And so a lot of people say there’s too much personal freedom. When personal freedom’s being abused, you have to move to limit it.  (James Bovard, “Democracy versus Liberty” (February 7, 2007) (emphasis added).)

But like our Founders — and unlike the attorneys mentioned earlier in this article who, deserving neither, willingly trade constitutional freedoms for a little security — I’m tired of the government unilaterally abolishing my inalienable rights for the sake of making some of us feel safe.

Together We Stand, Divided We Fall

At any rate, I began this article by saying that Nicole Black’s “Fear and liberty must co-exist” might help snap me out of the funk I’ve been in since the day I wrote Submitizens. And it has; not just because Nicole said what I feel better (and with far fewer words) than I just did, but because she reminded me that I’m not alone. There are real defense attorneys out there who haven’t become Submitizens.

My hope — and my goal — is that we can educate the rest of you so that you will stand with us and follow the example of our Founders with respect to our freedoms, without the need to resort to their method for achieving it.

Requiem to a Constitution

I linked a few articles in the post above, but three sites in particular I want to recommend to you for a serious read, in no particular order:

• Anthony Colleluori’s, “The Land of the Sheep and the Home of the Frightened”
• Mark Bennett’s, “Freedom vs. Safety”
• Andrea Bullock’s, “Would You Trade Liberty for Security?”

Don’t just sit there! Use the comment form below to join the conversation! Let us know you care! Let me know I’m not alone!

Comments

• December 24, 2008, Tony "That Lawyer Dude" Colleluori writes: Rick, great post. I hope you have grounds to attack this. I absolutely will not allow someone to touch me as I enter the courtroom as a working attorney. I have to be there. I do not mind screening of my bag, but I will not open it. I just leave and tell the court that I would not submit to a search of my person. I have yet to be denied after the clerk or ct. Room Dep calls down. I hadn't thought about a law suit but it seems like a good idea. In NY we have an atty ID which allows us to submit to a Police background ck and then we free pass into any state ct house. Feds still require magnometer and scans but I always pass. I wonder what a law suit might do. They have those same fail-safes at SCOTUS.
• December 24, 2008, RickH writes: Tony, I should maybe clarify something. They've never TOUCHED us (although I think one deputy was hoping to get an excuse to cuff me). But the point is, making someone empty their pockets and letting the deputy pick through things to make sure everything's "ok," to get into a courtroom, THAT'S a search. The thing I don't get is just that: how come (of all people) defense attorneys don't understand that when you're required to empty your pockets and let someone poke through the things you dump into a bowl, that's a search? Do any of us really think there's a difference between someone sticking their hands in my pockets and someone making me empty my pockets into a bowl they then paw through to verify that I'm not committing a crime? After all the rest of the verbiage in the Fourth Amendment, it doesn't say, "unless there is a possibility that in some alternate universe they actually might be committing, or about to commit, a crime" at the end.
• December 24, 2008, Tony "That Lawyer Dude" Colleluori writes: I agree however I understood that you only had to take out metal. That made some sense to me. I have never been asked to empty my pockets just to submit metal. Since I don't like that either I just stick keys and pens in my bag. I am equally concerned with what you write, but I am also aware that powers that wish to destroy us, will target our buildings of government. Where would you draw the line?
• December 24, 2008, Mike Hamilton writes: I think that one of the principles of the 4th amendment is a matter of trust, as in "trust no one". What I mean by this is that any kind of search and seizure without and even with probable cause creates a matter of concern in terms of trust. At some point, someone has to be trusted at a level that should not be given to anyone. As an example: A low profile but serious case is being held at a courthouse with the aforementioned policy. A particular security guard, without anyone's knowledge, has an interest in further incriminating the defendant. The security guard plants a weapon on the defendant as they enter the courthouse further creating an even worse situation for the defendant. Part of the protection of the 4th amendment is at least in principal to provide some kind of protection from situations like that. At a deeper level however it is still a matter of trust. Kind of like with Certificate Authorities in the IT world. At some point in the chain of certificate trusts, someone has to be considered completely trustworthy. The only problem with that is that with that kind of power comes a certain amount of corruptibility. Even if the party in question (the one we are supposed to trust 100%) is genuinely trustworthy, that party also becomes a target for those who would wish to abuse the trust earned by that party. And to further that example, as we get more and more companies that want to be CAs, how do we know that all of them are trustworthy? In many ways, our founders were paranoid about any kind of "chain of trust" and were more concerned with "checks and balances". Someone has to oversee power and authority. Of course then that creates another level of trust and thus another chain of trust. My bottom line is that there is confusion between "understandable" with "allowable". While it may be understandable "given these times", that does not mean it is allowable under the law of the land or the principle and spirit of the law. Trust is not something that can be granted or passed along.
• December 24, 2008, They Shoot Puppies, Don't They? | Probable Cause writes: [...] think we can put the blame solely on some psycho-distortion of the officers themselves.  As I alluded to on my more regionalized legal blog, our societal ideas about personal freedom and constitutional [...]
• January 6, 2009, A Nation of Suspects | Probable Cause writes: [...] More than once recently, I’ve written about Submitizens. Several criminal defense attorneys in Fresno, California, where my office is located, simply shrug.  Among other things, they can’t understand why this bothers me so much. [...]

Related posts:

• Submitizens
• Shooting Holes in the U.S. Constitution
• An Officer of the Court