Our system is irrevocably broken.  Nothing short of a new Revolution would fix it.  And I’m not at all sure the Americans of today can fix it even then.  We can only, at best, tear down the present Tyranny. 

And why is that? 

Brian Tracy, in his book No Excuses!: The Power of Self-Discipline, writes:

In the United States, we have a Constitution and Bill of Rights.  These documents lay out the rules by which Americans agree to live.  They create the structure of our government and guarantee our rights.  But they assume that our elected representatives will be men and women of honor, committed to protecting and defending those rights.  They attempt to ensure that only men and women of character can thrive and prosper over the long term in our economic, political, and social system.  They aim to assure that, in most cases, only men and women of character can rise to high positions in society.

Frankly, I don’t know that I agree with Brian Tracy concerning the aim of the rules laid out by the Constitution and the Bill of Rights, at least in terms of the aim being to assure that only certain kinds of people thrive, prosper, and rise to high positions in our society.  It makes some sense that this might be the end result of a system based on our Constitution and Bill of Rights, but I think the aim is much simpler than that: the aim is simply to guarantee life, liberty and the pursuit of happiness is available to each human being.   In particular, it gives the government certain limited powers necessary to structure a society where that is possible, while simultaneously trying to ensure that government doesn’t exceed those powers in a way that negatively impacts individual choices regarding life, liberty and the pursuit of happiness.

He’s dead right, however, about the rest of it.  The Constitution and the Bill of Rights are completely useless unless our elected representatives are men and women of honor, committed to protecting and defending those rights. 

And, increasingly, they are not. 

Day after day, I go out to “do battle” in an adversarial system the goal of which is sometimes described as “to seek justice,” or, at the least, “to preserve the social order.”  But “preserve the social order” can mean a lot of things.  If it means something like “preserve the world in such a way that the haves continue to have and the have-nots continue to have not,” then there is no relationship to justice.  If it means “to provide a means whereby those who have been wronged can have some chance of being made whole again” and “to provide a means whereby those who have proven they are not able to live in a civilized society can be handled in such a way as to assist them in becoming less harmful to others, or in a way that protects us when they will not ‘reform,’” then there is the potential that it connects to the concept of Justice. 

Increasingly, our “Justice” system has become disconnected from the concept of Justice — whether you like to spell justice with a capital “J” or not.

This, I’ve found, is a difficult world for me to live in.  It’s the kind of world in which I find myself increasingly on the side of troublemakers — I do not mean “criminals,” although certainly if I were to take the obvious path of armed resistance, that would make me into a criminal in the eyes of most people. 

And I have no desire to be a criminal.  I simply desire to interfere with the criminals who, increasingly, are running our system; nominally, our “justice” system.  And make no mistake, criminals are what they are: those who would destroy the values on which this once-great nation — this Great Experiment, as it was called — was founded, while making a pretense of upholding those values are worse even than the criminals who kill, rape, or rob from people.  They — the judges, the prosecutors, the law enforcement officers who consider the Constitution an impediment to the achievement of their goals — destroy an entire society.  They bring to an end our Great Experiment. 

Constantly having to fight them all frequently feels, at least for me, like an overwhelming task.  How do you handle working in a system where, for example, ex parte communications between judges and victims, judges and probation officers, or judges and prosecutors are so routine that judges don’t even try to hide it because they don’t actually recognize it as wrong?  How do you handle working in a system where the antagonism to accused people, or (and these are connected) the support of “victims” has become so strong that unfairness is built into the system?  How do you justify being part of a system in which the authorities aggressively pursue DNA testing to prove a dead man killed his wife, but vigorously resist efforts to allow DNA testing to prove a man’s innocence?  What do you do when judges consistently side with the prosecutors on such issues?

Our system has become skewed because we have forgotten what we once knew.  The Founders established a system that should have lasted for the ages.  As Brian Tannebaum has pointed out,

Four of the first ten amendments, otherwise known as the Bill of Rights, were written for the criminal justice system.

And he went on to say,

To sum it up, the criminal defense lawyer mirrored the philosophy behind the creation of America – a mistrust of government, a method of redress, and liberty. The criminal defense lawyer was given important powers to question government and assure that any attempt to take away liberty was done with strict scrutiny.

“Strict scrutiny.” 

Any scrutiny these days generally has one result: arrest. 

Despite all the above, as Scott Greenfield notes, Americans, although distrustful of the “justice” system, continue to believe in, to support the police.  How we became transformed from a nation that distrusted authority into one that blindly supports it is beyond me.  But it is increasingly clear that most Americans bear an uncanny resemblance to sheep, while too many others resemble Norm Pattis’ sheep-fixated dog, Odysseus. 

Norm has learned the futility of trying to fight “Ody’s” inbred over-herding of sheep.  The best Norm can do is keep Ody away from them. 

Our Constitution and its attendant Bill of Rights were intended to do that — to keep the Odysseuses in our nation away from the sheep (and all the rest of us), to allow us the security of life, liberty and the pursuit of happiness unencumbered by those in whom the tendency to herd everyone else was overbred. 

But the fence is broken.  Where the courts haven’t actually torn it down, it is simply ignored. 

The Fourth Amendment?  The Odys merely testi-lie that they had permission.  The courts believe them because everyone illegally possessing marijuana is okay with showing it to the po-po.  The Fifth Amendment?  The stupid sheep didn’t realize they had to bleat exactly the right words to invoke their right, so their bleating of the wrong words is completely admissible in court.  The Sixth Amendment?  Who can afford that? 

And let’s not even discuss the long-absent Eighth Amendment, the loss of which means criminal penalties can increase without limitation in such a way that jails and prisons now load up on innocents who plead out, rather than risk the long-term consequences devolving from our current “justice” system.  This is done, again, with the full support of our courts. 

When the other branches of government don’t give the Odys enough power, the Odys will simply appropriate it anyway.  That’s what Odys the world over do. 

And me?  I’m getting tired of trying to chase the Odys away from the sheep.  Especially when the sheep don’t really appreciate it anyway.  It’s bad enough to have to fight the Odys, without having the fight the sheep, too. 

I sure do miss that fence.

The problem isn’t that I haven’t had anything to write about.  Quite the contrary: I’ve had too much to write about.  The problem is that what I’ve had to write about made me so angry that I decided to try to cool down a bit first.

You see, the thing is, I hate a great number of you.  You self-righteous, pompous, law-and-order-until-the-cops-come-after-me-or-mine types.  Some of my family members are like that and, frankly, I think I’m just going to start disowning them.  Just as I disown the rest of you who are like that.  You’re the reason I believe that the rest of us should all carry weapons strapped to our waists, or in shoulder holsters, or anywhere else whence we can quickly retrieve them when we run into you.

Except, I don’t really feel that way, because if I did, that would make me just like you.

For example — and this is when I really knew I hated you — the other day there was a video posted showing a police officer punching a 17-year-old girl in the face.  The officer apparently wanted to stop a girl from jaywalking.  According to some pin-headed pundit, the girl refused to stop when he ordered her to do so and the officer grabbed her arm, whereupon she tensed up and her friend pushed the officer.  Thus, the officer was justified for punching her friend in the face.

I’m sorry, but had I been there, that would have been the end of it for either the officer, or for me.  I watched people circling and voicing their outrage to the officer and the only thing I could think of is “what the fuck are you standing there for?!”  In my opinion, the crowd should have taken that officer down the minute they saw him punch that girl.

Tony Norman writes,

As for the two females, they were clearly in the wrong, especially the young woman who shoved the officer. One of the first things loving parents tell their children as they enter their teen years is never to put their hands on an officer under any circumstance.

If I had children right now, I’d be sending them to classes where they could learn hand-to-hand combat and the fastest way to take down an out-of-control police officer.  Contrary to what Norman says, I think parents should start teaching their children how to lay hands on them in the way that will end any confrontation the quickest.

And I’m sorry, law-and-order types, but one reason more people are resisting the police is that the police have earned this response. I realize that it’s still possible for white people throughout the United States to remain largely ignorant of the extent of police misconduct: it’s still the case that the police treat white people differently than they treat everyone else.  It’s still possible for white people to wonder aloud, “What’s police brutality?”

As Bob Herbert points out,

If the police officers were treating white middle-class or wealthy individuals this way [the way they treat non-whites], the movers and shakers in this town would be apoplectic. The mayor would be called to account in an atmosphere of thunderous outrage, and the police commissioner would be gone.

Things are changing, though, as the police expand their mistreatment of non-whites to include more whites.  You only have to stop ignoring stories like this one, or this one, or this, or this, or this, or this, or this — I could, quite literally, go on all day.  Hell, just watch this for awhile.

And it’s not just because — as in England — the police are trying to balance out their racism by hitting up more white people.

The sad reality is that the police simply feel that they have the right to do whatever they want, whenever they want.  Sometimes it’s because they actually saw someone do something wrong, but then the police overreact.  Sometimes, it’s simply an unsubstantiated hunch that someone might be doing something wrong and then,as noted in this comment to a story of an attack by police on a viola player for carrying a can of Mountain Dew in his pants…

…their initial suspicion of criminal activity [results] in no charges. All of the charges bought against the student come exclusively from the encounter with police.

Sometimes it just because they think a crime might occur. Maybe. I mean, there’s a chance, isn’t there?

Regardless of the reason, the fact of the matter is that our police force is quite simply out of control. (You really want to watch that entire video and listen to the foreign commentary.  This is how badly we look to other police states.)  This is why I’ve begun to tell clients that the only way to obtain justice — and I warn them it could dramatically alter or end their lives, but it is the only chance at justice — is to fight back.

You certainly can’t get it in the courts. Courts today — not that there wasn’t an undercurrent of this in the past — wholly support those in power over those without power.  And the best way to do that is by condoning and even encouraging a police state.  So that is what they now do.

But too many of you believe that all this is okay.  Whatever the police want, the police should get.  (Until they come for you.)

So I’ve been having a little anger management problem that interferes with my ability to entertain — or even enlighten — you through my writing.

I’m more about helping to start the Revolution.

Yet every day we — collectively, as a society — slap others around and expect to change behaviors, even if we don’t necessarily expect our victims to thank us for bringing the fact that we think they have (or are) a problem to their attention.

Don’t misunderstand what I’m saying here: I’m not arguing that it’s wrong of us to lock people up in jails and prisons for committing crimes.  I might argue — in fact, I frequently do — that we lock too many people up in jails and prisons for doing things which should not be considered “committing crimes.”

Sometimes I’m talking about things like Prohibition, which worked out so well when it was enacted via constitutional amendment in 1920 that it was repealed by 1933, then re-born as the “War on Drugs” that has nearly bankrupted us while destroying the countries that cater to our black markets. (In fact, the case has been made that the War on Drugs, more than anything else, has contributed to the problems this article I’m writing highlights.)

Sometimes I’m complaining about locking up juveniles for fighting in school, where, in the old days, a trip to the principal’s office — at worst an expulsion — would have been considered more than adequate.

But nobody resolves banal disputes in such a banal manner anymore.  The ordinary response to nearly any such incident these days is to call the police.  Hell, we now even arrest 5- and 6-year-olds for throwing temper tantrums.  After an uproar over handcuffing kindergarten crybabies, the New York Police Department tried to calm parents by promising to use softer handcuffs.

“When the NYPD is writing protocols for handcuffing 5-year-olds, doesn’t that give them pause?” [the NYCLU's executive director] says. “It’s a school system that has abdicated responsibility for routine discipline to the Police Department.”

Does it give the police pause?  Does it give the majority of us pause?  No.  It does not.  Overreaction is the new norm. Resistance to authority is futile.  You will be arrestolated.

Everything that happens is subject to police intervention and our militarized police forces “take no chances.” The new “zero-tolerance” for “civilians” means that an anonymous 911 call can result in police officers surrounding a school bus, “extracting” and handcuffing every child on board until things can be sorted out.  If it turns out that neither a justification for the action, nor the 911 caller (!) can be found after such a gratuitous display of force, well, they uncuff the kids and let them go.  No harm, no foul, right?

What?  Your kid fell down and bumped his head?  You’re trained to deal with such things, having worked with medical forces in Vietnam, and your kid seems fine?  If you refuse to let the paramedics invade your home, uninvited, you could find yourself, days later, confronted at gunpoint, thrown to the ground and handcuffed after the police break down your front door “to check on” your kid.

These are not the isolated events that many would have you believe they are.  Such things happen every day.  As Scott Greenfield pointed out this morning, even judges know not to refuse to submit to the inquiries of the police when they encounter them in the wild.

Things are, of course, even worse if you happen to be already charged with a crime; worse still if you’ve been convicted and imprisoned.  In one of my juvenile cases, a guard grabbed a kid around the throat and then taunted him because he didn’t like something the kid had said.  As usual, I don’t want to give many details about my own cases, especially those involving juveniles — suffice it to say the kid resisted this, which resulted in new charges.  In a prison case I’m handling, guards mistreated my client and, when he tried to utilize prison procedures to complain, his complaints “disappeared” — as did he for a short time after he was deemed “a danger to the general prison population,” requiring an “administrative segregation.”  Because he kept trying to complain.

The toxicity — the lack of simple human decency or respect — to which we expose prisoners virtually guarantees future trouble, both for them and for us.

A story in the monthly paper Community Alliance: The Voice of the Progressive Movement since 1996 tells of a Native American religious ceremony being interrupted by a guard who — thanks to the lack of training, intelligence and understanding one might hope for in such circumstances — mistakenly believed the ceremonial activities performed in accordance with the Religious Land Use and Institutionalized Person Act (RLUIPA, 42 § 2000CC et seq.) were criminal acts.  The ceremony was interrupted.  The inmates originally offered to cooperate with the guards.  They all offered to submit to drug tests to prove the guard wrong.  They offered to let the guard examine and smell — the case involved a charge of marijuana being smoked — the burning sage and sweet grass, so she could realize it wasn’t the kind of grass she thought it was.  These offers were rejected.  The inmates were strip-searched for metals.  (Did the suspicious guard, having “smelled marijuana,” possibly decide that if the inmates had “pot” and “some pots are metal” then a search for metals was in order?)

Based on the refusal to treat the inmates with basic human dignity in the face of their cooperation, the inmates stopped cooperating.  For this refusal to continue cooperating — something that had borne so much fruit already — all the inmates were accused of CDC-115 (serious) Rules Violation Reports, were convicted by a senior hearing officer in the prison, and lost “good-time credits, contact visits and phone, canteen (prison commissary) and quarterly package program privileges.” (Boston Woodard, “When the Smoke Clears (It’s Just Medicine)” (June 2010) Community Alliance, p. 3, col. 3.)

Even with our draconian sentencing laws, many of these people will one day be free.  They will be out in public again.  The indignities to which they were subjected will not be forgotten anymore than you would forget my having slapped you in the face for playing your music too loudly.

So stop, just for a moment, and think about that slap in the face.  How would you react?

Then ask yourself if maybe we — as a society — ought to change the way we treat others.

And if you happen to be one of my friendly law enforcement readers, do everyone a favor: ask yourself this several times a day.  If you overreact, it has far-reaching consequences for us all.

No, she added her voice to that of several others who have written about Arizona’s new law written by idiots to stop the unstoppable: immigration.

Legal or not, immigration is unstoppable. It’s how almost all of us got here.

And, if you really think about it, almost none of us got here legally. At least, not if you’re white.

But as to stopping immigrants, Norm Pattis said it best:

Go ahead and buil[d] a new Hadrian’s wall, this one along the border to Mexico. My prediction is that people will still find a way into this country. All that we will have accomplished is spending lavishly on law enforcement. One of the prime forces making for historical change is the movement of peoples. You can’t stop history.

History.

I listen to a lot of books in my car. My favorite subject is early American history. Particularly the kind that will help me understand the minds of those who founded this once-great nation. I don’t remember which one it was, but I recall recently a book I was listening to noting that many of our earliest Presidents, starting with George Washington and continuing on through (at least for the portion I was listening to) Andrew Jackson, all had to deal with the illegal immigration problem.

You see, the United States had treaties with various large Native American nations, or (more accurately) federations. Although by “Native” Americans, I cannot possibly mean “white people,” still, we’re not talking about small “tribes” of uncivilized savages here: we’re talking about huge numbers of tribes which had banded together.

As I recall, there were at least two distinct federations — one bordering the north and west of the then-nascent United States of America; another, larger one, west and south of us — and there was some indication that these two separate federations were willing to cooperate, if necessary, to stop the illegal white immigration into their lands. Between the former colonies, the Spanish, the British and the French, they’d learned quite a bit about how to fight a war.

They were prepared to fight one against us. It was something our first Presidents understood and feared.

Interestingly, the solution bandied about today is one that these earlier Presidents considered as well: sending troops to defend the borders. Only, of course, the troops would have been required to fire on white people, invading Native American lands.

Ultimately, though, it was not the concern about having to fire on white people that stopped the government from acting. It was a combination of factors including lack of money and that it was just too late. The number of troops required would have broken the bank; the numbers of “settlers” who had broken through the borders, looking for a better life, was already too great.

You might call it “Manifest Destiny.” Readily apparent and inexorable.

Ultimately, this Invasion of the Bounty Snatchers grabbed up everything from one coast to another and, having disposed of the Native Americans, even started a War with Mexico. The end result of President James K. Polk’s creative exercise of the concept of eminent domain was that Mexico accepted the Rio Grande as its northern border and gave us the territories of California and New Mexico (we’d already grabbed Texas — that’s what started the war) for $15 million.

Hey, it beats $24 worth of beads.

At any rate, having stolen them fair and square, the United States now “owned” these territories. And in September of 1849, California held its first constitutional convention in Monterey.

Oh, my, does anything bad ever come out of Monterey?

There was one problem, though.

A practical problem facing the delegates was the fact that all documents for consideration had to be translated into Spanish since approximately a third of the delegates could only read and speak Spanish. (Hon. Gregory M. Caskey, Judge (Ret.), California Search and Seizure (2010 ed.) p.2.)

Yeah. One-third. They didn’t speak English. Only we couldn’t really tell them that if they couldn’t learn English they should go back to their own country. They were in their own country. Or, at least, it was theirs before we stole it.

Fast forward to today. The moccasin, el zapato, the shoe is on the other foot. Americans — by which, from watching the news, we almost always mean “white people” — are none-too-happy about all these people streaming across our borders, looking for a better life. Like their predecessors — I’m talking about the white people — their greed and ignorance knows no bounds. Hell, I read these ignorant fucks writing Letters to the Editor of the Fresno Bee almost daily. It’s frankly disgusting that they’re unable to recognize that the problem with the law isn’t that it allegedly targets illegal aliens.

The problem is that there’s no way to tell, merely by looking, whether or not someone is an illegal alien! Nearly 40% of Californians, for example, are Hispanic, but a large number of them are here legally. Nationwide, there were 45 million Hispanic people, or 15% of the population in 2008. Again, a large number of those are here legally.

This, of course, doesn’t even touch the problem of illegal white immigrants. Shall we just have the police stop everyone and ask for papers? Should we require them to ask the question in German? I doubt that’s what we want.

So, inevitably, the rights of numerous U.S. citizens will have to be violated to find the fraction of the population — and, mind you, it is a fraction of our Hispanic population — that might be here illegally.

Even those who should know better, as Brian Tannebaum points out, have capitulated. After all, 66% of these people think Arizona done a gud thing. As stupid as some of these people may be, it’s possible that some of them might be smart enough to vote. So the politicians capitulate. This time it’s not because we don’t have the money for troops. Hell, there’s no shortage of troops. (That’s why we have a budget problem, by the way. It’s not “illegal aliens.” It’s too goddamn-many troops.)

So there’s a war on, of sorts. Us against them. These people streaming across our borders. The difference is that we spend most of our money these days on maintaining a standing army.

The problem is, as I’ve said, that the standing army we’ve built and maintain has no really lawful way — at least not under our Constitution — of finding out who is here legally and who is not.

So, what the hell? Who needs a Constitution anyway? I mean, after all, as just about any criminal defense lawyer can tell you, we weren’t really using it anyway.

Still, there is this one small problem.

You could call it “Manifest Destiny.” The same thing that caused us to wipe out the Native Americans and started the Mexican-American War. The problem is people looking for a better life. They’re coming here, hoping to find it. That is readily apparent.

It’s also inexorable.

Maybe we should try something different. Maybe we should try to learn to live together.

After all, la linea is just a line. I’d rather see people cross that one than the one Arizona has picked.

I’ve been resistant to the idea of owning a gun.  I’ll be frank: guns scare me.  When I was a kid, my father taught me to shoot one, but seeing what a gun could do just made me realize I wanted to be far away from them and have nothing to do with them.

Unfortunately, the type of gun I really need is not available to me, because I live in a Nation of Laws which, when it isn’t busy violating it, simply ignores its own Constitution.

Because what I really need is a weapon that will allow me to fight my own government, and they have some pretty damn big guns.

The Second Amendment to the United States Constitution notes:

A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Of course, the right of the people to keep and bear Arms is routinely infringed.  By “law.”  In California, for example, the people are currently allowed to bear Arms, but since the Second Amendment forgot to expressly mention the ammunition that goes with it, the guns must be unloaded. A lot of good being able to bear unloaded Arms does.

Of course, when the Revolution starts, California can go fuck itself.

At any rate, as Scott Greenfield, Radley Balko, Jeff Gamso, Norm Pattis, Robert Guest and Brian Tannebaum have done, so do I bring you this disgusting video:

The police in the video followed the “accepted procedure” of our courts, announcing themselves (under cover of darkness) giving the occupants a few seconds to rouse themselves before busting down the door, rushing in and shooting the family dog.  Apparently, the dog must have refused to comply with their orders even after being shot, because after a brief pause several more shots are fired into the dog, silencing its screeches of pain.

Fortunately, they appear to have missed the children.

The officers are dressed in exactly the type of outfit that would have roused George Washington, Thomas Jefferson, James Madison, Elbridge Gerry and the thousands of other Founders of our nation to go to war against their government.  And anyone who doesn’t think these men would go to war against the government under circumstances like we face today simply doesn’t know much about the history of this country.

This is one reason the government wants to ensure that you do not exercise your right to bear arms.

George Washington, for example, reportedly said:

Firearms stand next in importance to the Constitution itself. They are the American people’s liberty teeth and keystone under independence. From the hour the Pilgrims landed, to the present day, events occurrences and tendencies prove that to ensure peace, security and happiness, the rifle and pistol are equally indispensable. The very atmosphere of firearms everywhere restrains evil interference – they deserve a place of honor with all that’s good.

In actuality, there is no reliable evidence that Washington made this statement.  But he should have.  Because it’s true.  “Firearms stand next in importance to the Constitution itself.” They are our “liberty teeth” intended to protect us against our own government. The reason we have the right to bear arms is in case we need to shoot back at our own government.  This is why the right belongs to “the people” as the right of each one of us.

Don’t believe me?  You don’t think the Founders thought we might need to protect ourselves from our own government?  They frequently made comments about the fact that one thing that made America different, and unlikely to fall to a tyrannical government, was the fact that Americans own guns.

James Madison wrote in Federalist No. 46, that people had nothing to fear from the federal government partly because of “the advantage of being armed, which the Americans possess over the people of almost every other nation….”¹

Thomas Jefferson, third President of the United States, said,

The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure.²

And Jefferson also said, in that same letter,

What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance?  Let them take arms.³

Even Noah Webster, of Merriam-Webster (yes, the dictionary) fame, said,

Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme Power in America cannot enforce unjust laws by the sword, because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.⁴

In 1873 — admittedly now taking us out of the realm of the Founders — a Justice of the United States Supreme Court, Justice Story, wrote that:

The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.⁵

Story was, however, citing Tucker — as would our current Supreme Court in the 2008 case of District of Columbia v. Heller — and Tucker was writing in 1803, shortly after the founding of the United States.  And while I can’t say the same for our current Supreme Court, Tucker was no nutcase.  In a time when integrity, intelligence and honor were still the best guarantee of success, he was a judge of the Virginia Supreme Court and later the United States District Court in Virginia.

But, again, views like these are the reason why our government wants to take away our right to own weapons, or, in the alternative, wishes to limit the types of weapons we can own.  The Founders, by the way, talked about that, too.  They knew that tyrannical governments first work to disarm their citizens.  Today, that starts by making sure the weapons available to us are not nearly as powerful as the ones the government uses to shoot our dogs.

This move needs to be resisted politically.  We can vote out any politicians who try to limit our right to own weapons powerful enough to protect us against them.  For as Rich Mason of Tennessee put it,

If the arms of the soldiers of this era are automatic rifles, machine guns and sub-machine guns then it is the right, in fact the obligation, for the citizens of this country to possess such arms themselves. It is laughable on its face, as some have stated, that the Second Amendment would grant to us the right to only have flintlocks or muskets, such weapons as were in use at the time of our countries founding, to defend ourselves against an armed force raised by the government to oppress us, or to defend against an invading enemy. … If anything, we have the rights to limit the governments use of technology, not the other way around.⁶

And, frankly, to those apologists for the police who frequent this site, there is no excuse for the increasing militarization of our police force and for their willingness to shoot defenseless citizens and their puppies.

I echo the words of Norm Pattis:

So if you are thinking about bursting into my home with or without a warrant, be forewarned: Shoot to kill my dogs, and I will shoot to kill you. Period.

And if anyone has a recommendation on a good weapon, drop me an email.  Unfortunately, for now — I am an attorney until the Revolution starts, after all — I’m looking for one that’s powerful, but strictly legal.  Still, it needs to be a good one: Fresno’s police department is fond of shooting citizens, as well as dogs.

Oh, yeah, in fairness I think I have to mention: the little “war on drugs” involving the cops who busted down the Missouri family’s door and shot what I understand was a Corgi were ultimately able to charge the homeowner with misdemeanor possession of marijuana.

That’s right: misdemeanor.

1. The Federalist Papers, No. 46, at p. 296 (James Madison) (Clinton Rossiter, ed., Signet Classic 2003).
2. Thomas Jefferson, letter to William Stephens Smith, November 13, 1787.—The Papers of Thomas Jefferson, ed. Julian P. Boyd, vol. 12, p. 356 (1955).
3. Jefferson, supra, letter to William Stephens Smith.
4. Webster, An Examination into the Leading Principles of the Federal Constitution, in Pamphlets on the Constitution of the United States (P. Ford ed., 1888) 25, 56.
5. Joseph Story, Commentaries on the Constitution of the United States: with a Preliminary Review of the Constitutional History of the Colonies and States Before the Adoption of the Constitution (1873) p. 620.  Story cited to 1 Tuck. Black. Comm. App. 299 for this.  It is worth noting that in the recent United States Supreme Court case of District of Columbia v. Heller (2008) 128 S.Ct. 2783, 2805 [171 L.Ed.2d 637] cited this same quote from St. George Tucker’s version of Blackstone’s Legal Commentaries in support of its opinion that the right to bear arms was personal; i.e., that individuals and not just militias, have the right to bear arms.
6. Rich Mason, “Why the Right to Keep and Bear Arms is Important to You” (1999) available online at http://www.tennesseefirearms.com/articles/rkba_important.asp, bold-face emphasis in the original.

Most people, however, upon hearing this think, “Ahhh…those damn defense attorneys.  Always coddling criminals.” The truth is that we don’t coddle criminals.  Granted, we usually — though not always — end up defending criminals.  After all, the police don’t get it wrong every time.  (But potential jurors should keep in mind, please, that until you’ve heard all the evidence, you don’t know which of my clients are criminals and which are innocent, though accused.)

However, you’ll find that most — and by “most” I mean “nearly all” — criminal defense attorneys dislike the idea of lawlessness and people getting away with committing crimes just as much as anyone else.  Contrary to what appears to be popular belief, we don’t want to see anyone raped — child, woman, or man — and we don’t want to see anyone killed, robbed, left the victim of domestic violence, or suffering in any other way from an unlawful act.

At the same time, though, there is something we fear at least as much; maybe more.  And that is this. The story is from 2006, but I recently saw it on Jonathan Turley’s Res Ipsa Loquitur blog. I considered whether to use it to make my point, because of its age; I was concerned that some might call it an aberration.

Although the vast majority of people targeted illegally by the police are non-whites, New York’s infamous “stop-and-frisk” policy has resulted in 287,218 white people enjoying the NYPD’s unjustified and humiliating attention.  Let’s be clear about something:  I am not saying it is of no concern that 2,511,243 non-white people were also stopped.  But too often it seems that unless white people suffer the indignities I describe below, it doesn’t matter.  Complaints from me and other defense attorneys, as I noted above, are deemed to be (at best) hyperbole.

Ultimately, I’m trying to warn you — yes, you, “dear reader” — that the problem is growing.  It’s not just “bad guys.”  It’s not just “those people.”  As the numbers from New York and the story below indicate, it can happen to you.

The link that caught my attention and caused me to write this post goes to a story about a couple of people who visited Baltimore City for a ballgame.

According to the story, the couple came from out of town and they became lost after leaving the ballpark to go home.  Their concerns melted away when they spotted what they thought was a police officer, one “Natalie Preston.”  After all, to this couple, both of whose parents are police officers, trusted the police.  They knew the police to be “the good guys,” ever ready to fulfill their roles as public servants and to assist citizens.

So you can imagine their shock when, upon pulling up to Natalie Preston to ask directions, they were confronted by a hostile individual who told them they’d just run a stop sign.  After receiving the ticket, the Natalie Preston’s response to their request for directions was met with a rebuke:

You found your own way in here, you can find your own way out. ²

Apparently the penalty for running stop signs in Baltimore City is the navigational equivalent of “no soup for you!”

The couple flagged down another person they believed to be an officer to ask for help.  But the Natalie Preston would have none of that — she inserted herself between the officer and the couple, telling them that since she had just refused to give them directions, the officer was not going “to step in front of me and tell you directions if I’m not.”

Did I mention what a friendly place Baltimore City is?

Stunned, Joshua Kelly moved them away from Natalie Preston and the officer, driving 40 feet forward.  There they parked and called Brook’s father — a police officer (remember?) — to get directions.  While they were talking to him, Natalie Preston, who had given them the ticket, and made sure they couldn’t get directions from an officer in Baltimore City, approached, ordered Joshua Kelly (the husband) out of the car, told him to put his hands behind his back, cuffed him and arrested him for “trespassing.”

Apparently, when Natalie Preston says you’re not getting directions, she means from anyone.  Anywhere.  In the world.

“By this time, I was completely in tears,” Brook said. “I said, ‘Ma’am, you know, we just need your help. We are not trying to cause you any trouble. I’m not leaving him here.’ What she did was walk over to my side of the car and said, ‘Ok, we are taking you downtown, too.’” ³

The couple’s car was left unlocked with windows down in the impound lot.  Several items were later discovered to be “missing.”

After eight hours of sleeping on a concrete floor next to a toilet, Joshua Kelly and Llara Brook were released without any charges being filed.

You just gotta love Baltimore City.  Or, at least, Natalie Preston.

But my point is actually larger than Natalie Preston, or even Baltimore City.

I started this article talking about the things criminal defense attorneys complain about.  And most of the time — and by “most” I mean “almost always” — people don’t want to hear our complaints.  After all, as I said, we defend criminals.

And we don’t live in a police state, because in police states, people get stopped all the time for no reason and they have to show papers before being allowed to move on.  That sort of thing doesn’t happen here in the United States.

Maybe in Arizona, but not in the United States.

But Arizona doesn’t count, anyway, because it’s just brown people getting stopped.

Okay.  Okay.  I’m frustrated.  I try to explain to people that police states don’t happen overnight. Even in Nazi Germany, things didn’t happen overnight.  Oh, and can we get one thing out of the way?  I’m not saying the United States is Nazi Germany! Not yet, anyway.  To my knowledge, no significant individual, or group, has suggested rounding up the disfavored in America, putting them into concentration camps, and killing them.  (Joe Arpaio’s disfavored, a.k.a. “prisoners,” don’t count, because even though he somewhat copies the concentration camp model, the deaths he causes are incidental and accidental.)

As I said in a prior article, “How Police States Are Born,”

First, there is the beginning of a gradual, even imperceptible, erosion of “the rule of law.” After all, if the rule of law remains in place, the police state — which is a major tool for “the rule of man” — cannot come into existence.  The erosion of the rule of law prepares the ground for the police state.  If I were to stick to the allusion I made above of pre-natalism, I’d say ”the erosion of the rule of law prepares the womb for the birth of a police state.”

Police states don’t happen in the blink of an eye.  It starts out with the police targeting those we — as a society — don’t concern ourselves with all that much.  The police get used to the unfettered exercise of arbitrary power, though, and the attitudes that allow them to treat those we don’t care about as not deserving of their respect begin a process of institutional accretion.  Soon, the gold shield (and gun) isn’t the only thing that separates “them” from “us.” “They” no longer see “us” as any different from the disfavored: we’re all “civilians.”

A variation on “First they came…” seems particularly apropos:

THEY CAME FIRST for the Criminals,
and I didn’t speak up because I wasn’t a Criminal.

THEN THEY CAME for the Low Lifes,
and I didn’t speak up because I wasn’t a Low Life.

THEN THEY CAME for the Hispanics,
and I didn’t speak up because I wasn’t a Hispanic.

THEN THEY CAME for me,
and by that time no one was left to speak up.

It doesn’t happen in the blink of an eye.

But it does happen.

By the way, the reason I referred to Natalie Preston by her name throughout this article is that she — like others who abuse their position — does not deserve the title of “Officer.”  The report submitted by Natalie Preston, surprisingly, gives a different version of the story of their encounter.

I know.  It’s hard to believe.

But there’s an interesting intersection — a small, weird, piece of agreement, if you will:

The police report of the circumstances indicates Preston told the couple she would arrest them for trespassing — on a public street lined with public housing units. ⁴

The couple — as I mentioned above — was released from custody without charges.  Joshua was later acquitted of running a stop sign.

1. James Madison, one of the Founders of the United States, once argued against a “Bill of Rights” because he felt it was a “parchment barrier” against abuses by a government.  Sometimes, I think that if he’d won out, we might be better off; Jefferson felt that “[t]he tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants.”  Jefferson said this blood was liberty’s “natural manure” and said, “God forbid we should ever be twenty years without such a rebellion.”
2. “Couple Arrested For Asking For Directions” (May 17, 2006) WBAL-TV.
3. “Couple Arrested For Asking For Directions” (May 17, 2006) WBAL-TV.
4. “Police Report Refutes Lost Couple’s Story” (May 17, 2006) WBAL-TV.

What caught my attention is the nature of the crime.

The minor was apparently arrested for the crime that — and here I have to quote the judge verbatim because otherwise I don’t really know what to call the crime — “he delayed the officer being able to make contact with him.”

That’s right.  According to what was said in court, a police officer wanted to talk to the minor.  The minor apparently knew that the officer wanted to talk to him and the minor walked away from the officer.

Now I don’t know the details of this case.  It wasn’t my case.  I didn’t see the police reports.  But what I’ve written above is what was said in court.  When the judge asked the minor to allocute, the minor began a story that — frankly — sounded to me like he was saying the only thing that happened was the police officer called his name and he walked away because he didn’t want to talk to the officer.

The charge was a violation of Penal Code section 148(a)(1), which reads:

Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

WTF?!  Delays?!

Since “delays” is in there, the judge’s words accurately describe a potential crime.  But, seriously, the cop wants to talk to you and you clearly don’t want to talk to him so you walk away, and that’s against the law?  Yet that’s all it can be:  too often I see this “crime” charged by itself.  Usually, in most courtrooms, the crime is described as “resisting arrest.”

The problem is that, as here, the obvious question — “what ‘arrest’ was being resisted?” or “what was the basis for the arrest?” — is seldom given a good answer an answer that makes sense.

In this instance, the kid was basically arrested for not wanting to talk to a police officer.  Does the law really require a person to talk to a police officer?

If it does, that law is unconstitutional.  Consider, first off, that under the obscure and little known legal doctrine of the so-called “Miranda warning,”

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?

So if you don’t want to talk to a police officer, you don’t have to do so.  You have the right to remain silent.

Secondly — and, as I said, I don’t know all the details of this case, but I did hear what the kid was saying during his allocution, until it was stopped because it was going down a “I didn’t do anything illegal” path — there is no legal requirement that a person remain in the presence of a police officer when one does not want to do so, unless the officer has specifically ordered you to stop and remain in his presence.  However, as noted above, even if you are ordered to stop, there is no requirement that you then talk to the police officer.  (Certain exceptions regarding providing your identity under certain circumstances apply.)  Normally, if the police walk up to me and start chatting, I have every right under the law to just walk away.  Normally, if I’m ordered to remain in the presence of the police officer, I have “the right to remain silent.”

At least, that’s what I’ve always believed and told people.

The United States Constitution seems to support that, as well.  The Fifth Amendment, for example, is usually interpreted as indicating the aforementioned right to remain silent.  The Amendment itself arguably limits itself to “criminal cases,” but I have a hard time believing that police officers have a right to force me to discuss the weather with them.

The First Amendment would appear to provide a basis for this, as well.  The constitutionally-protected right to freedom of speech has more than once been interpreted to include freedom from speech.  Admittedly, this usually means freedom from being forced to say specific things, like having a license plate that communicates a message of which you disapprove.  I see no reason it shouldn’t include the freedom from having to speak to particular types of people.  Similarly, the freedom to associate includes the freedom to choose with whom not to associate.

Then, of course, there are so-called penumbral rights — a misnomer to anyone who actually knows how to read (as in, hey, judges, how about you start reading the Constitution for a change?) — which include the right to privacy and the right to be left alone.  I shouldn’t have to become a hermit to be able to avoid contact with people I don’t wish to contact; going out on the street doesn’t mean I’m inviting a conversation with every Tom, Dick and Harriett I pass along the way.

Nor am I simply the oddball criminal defense attorney holding this viewpoint from an overzealous dislike of law enforcement.  Numerous attorneys both in Fresno, where I practice criminal defense, and across the country — I communicate with the latter via Twitter, blogs, or email — are apparently of the belief that if you don’t want to talk to a police officer, you can walk away when an officer attempts to talk to you.  In fact, the response to my “tweeting” about the minor “admitting” to a crime for not wanting to a police officer was met with responses like,

• “That’s a statute in CA?”
• “!!!?!”
• “:-/ that’s frustrating.”

Indeed.

But apparently the law in California is that you can be charged with a crime where the only crime is not allowing an officer to try to talk to you.

If the officer “has a legal right” to do so, then the officer may detain anyone.  If you know that he’s trying to detain you, then — believe it or not — you have a “duty to permit [your]self to be detained.”  (People v. Allen (1980) 109 Cal.App.3d 981, 985 [167 Cal.Rptr. 502], emphasis added.)

Even more remarkable, the officer doesn’t have to tell you that he’s trying to detain you.  In the Allen case just cited, the officer never said a word; he was in a police car.  The defendant-appellant in that case was assumed to know the police officer wanted to talk to him:

Appellant knew full well, and counsel conceded so at argument, that the officer’s attention was centered on him and that the officer wanted to talk with him. When appellant saw the police car he slammed the trunk lid down and took off at a high step. As he left the scene he continued to look back nervously toward the officers as he hurried away. Finally, as the officers closed in, he broke into a run and eventually attempted to hide from the officers. Bystanders knew appellant was aware of the officers’ desire and that appellant was attempting to escape from the officers. Officer Barron testified “…numerous subjects were pointing in the same direction, stating he was running from us.” Under the ambient circumstances here involved and the totality of facts of this case, we believe that it was unequivocally clear to appellant that the object of the police’s attention was appellant as an individual. (Allen, supra, 109 Cal.App.3d at 987.)

As stated more succinctly in a footnote, “Appellant could refuse to cooperate, but could not run and hide.”

So, yes, in California it is entirely possible to be arrested for walking away from a police officer who wants to make contact with you.

It is, of course, an utterly stupid rule when it allows a citizen who has committed no other crime except to believe he lived in a free republic to be arrested just because he did not wish to interact with the police.  It clearly demonstrates that we do, indeed, live in a police state.

But until the citizens of the police state throw off the shackles of the police state — and, increasingly, that probably means until there is a bloody revolution — that’s the law.

At least in California.

If you haven’t the moral courage to hear that and consider what should be done about it, then go somewhere else: you’re not going to be happy reading this blog post.  (Be sure to stay away from Injustice Everywhere, too.)

On April 11, Bobby Frederick posted an article about something that, one day, is probably going to get me killed: Contempt of Cop. With a link to video.

The next day, before I could get around to blogging about Frederick’s revelation, came this story about police essentially stopping people at will and searching them.  Fourth Amendment?  What Fourth Amendment?  Oh, yeah.  In case you didn’t follow the link: that story had another video.

The next day, Brian Tannebaum steps in with an analysis of the script cops use when they violate the law regarding stopping and arresting people.  Brian’s script, accompanied by video, boils down to this:  Lather, Rinse, Repeat.

As Brian points out, this sort of thing isn’t new.  Police officers sincerely believe themselves to be in charge of the world.  The law doesn’t apply to them, because they are the law.  So you can’t question them, and you don’t get in their way.

It doesn’t matter if you’re driving a stricken patient to the hospital in an ambulance. (Video.)  It doesn’t matter if you’re an innocent victim and called the police for help.  (Video.)  It doesn’t matter if you’re lying on the ground with a broken back.  (Yep, video.)  Or if you’re already a paraplegic.  (Video.)  It doesn’t matter if your hands are cuffed behind your back.  (Video.)  Or if you’re cuffed and several officers have you pinned to the ground.  (Video.)  Sometimes, if you’re lippy, you just have to be handled, even if you’re only 15. (Video.)  Or 5 (yes, that’s five).  (Video.)  Or 62.  (Video.)  Or 87.  (Video.)  Or if you’re in your home.  (Video.)  You might just be out for a bicycle ride.  (Video.)  It doesn’t matter if you’re mentally challenged.  (Video.)  It doesn’t matter how smart you are.  (Allegedly there is video, but I can’t find it; another story alleging there is video.)  It doesn’t matter if you’re a reporter doing your job.  (Video.)  It doesn’t even matter if you’re not the person they were looking to beat.  (No video.)  It doesn’t matter if you’re one of their own.  (Video.)  Heck, sometimes they get so confused, they even attack themselves!  (Video and video.)

Sorry.  I had to make the last two links to something funny.  After watching hours of police  attacking people on video — I couldn’t stop myself; it’s like watching the great train wreck of the republic — I just had to add the funny ones.

But it doesn’t really help.  Because as Scott Greenfield noted, the day following Brian’s post, referring to the video Brian posted:

The video, and the story surrounding the video, still suggests that it’s an isolated incident. But for the video, this would be just another story about a beaten kid complaining about cops without any evidence to back him up. This isn’t to say that the police are wrong in every instance, but that the police can no longer wrap themselves in the presumption of being the good guys. The question remains, when a video like this goes viral amongst the general public and mainstream media, how to make clear that this isn’t an isolated incident?

How?  Because, truthfully, we’re not nutcases.  It is not an isolated incident.  They are not isolated incidents.  There are (at least) hundreds of them which have been videotaped.  There are thousands of them reported.  They are part of a pervasive culture of power, the natural outcome of an “us versus them” way of life.  The script Brian delineated has become so common that many — and not just defense attorneys — now know it by heart.

Especially items 4 and 5 from the script, both of which can be summed up by saying, wait until “the investigation” (which we, the police, will conduct and/or control), before “jumping to conclusions.”  Wait until we have rallied our troops, put our heads together, to come up with some explanation that will have some modicum of plausibility.

Angry that anyone would question their “split-second decisions,” the law enforcement “community” said it was wrong to jump to conclusions before the details of the investigation were complete. The sheriff defended the police publicly before any investigation even started, so he apparently was jumping to conclusions, but never mind. The consensus: calm down and wait for the department to see what happened. (Steven Greenhut, “The Militarization of American Police” (March 2008) The Freeman: Ideas on Liberty, vol. 58, issue 2.)

And we will do this.  We will wait.  We will criticize and try to silence anyone who states the obvious.  Because not to do this means to recognize the truth: that our police officers can no longer be trusted at their word.  Yes, they do protect us from the bad guys — well, the bad guys who don’t wear police uniforms.

But, increasingly, the bad guys wear uniforms.

See, the days when the uniforms designated the good guys — those were the old days.  (I’m not so naive as to think of them as the “good old days“; they are merely the old days.)  A different breed of police officer walks the beat.  Well, actually, they no longer walk.  And “the beat” has become “the beatdown.”

Police officials always depict their officers as reluctant warriors who rarely, if ever, use or even brandish their weapons. But this is a fiction from the past. Officers tell me the old-school guys are mostly gone and that the new breed of cop has a military mentality and often a military background. The SWAT-team members are the ones who do the training and get promoted to top positions in the departments.

There’s plenty of anecdotal evidence that police are far from reluctant to pull their weapons or feel much remorse when they do. After Riverside police gunned down a sleeping girl named Tyisha Miller in a car in 1998 (she had a gun in her lap, was unconscious, and after police smashed her window, she moved and they immediately opened fire), the officers involved in the shooting stood around, joked, and animatedly reenacted the shooting, according to Los Angeles Times reports. One of the officers commented, “This is going to ruin their Kwanzaa,” after upset family members showed up at the scene. One local man arrived at the scene of another officer-involved shooting and reported that the police were high-fiving each other. (Greenhut, supra.)

In the streets, the police are in control.  Anyone who doubts it needs merely to start clicking some of the videos I linked near the beginning of this article.  In the courtroom, though, citizens, jurors — or, as the militarized police call us, “civilians” — are still in control.

Therein is found the answer to what we can do about this.  There, in the courtroom, is where we can start to tear down the “us versus them” mentality, by refusing to buy into it ourselves.  As Scott noted,

This isn’t about fostering public hatred of police…. This is about healthy skepticism, the end of blind faith.

We start to eliminate the “us versus them” mentality by reminding ourselves — and through our healthy skepticism, the police — that “they” are no different than “us.”  “They” are human beings who will, like “us,” sometimes lie when it is in their own best interest to do so.  The words of law enforcement witnesses must be heard and examined with at least the same healthy skepticism that we apply to the words of other — “civilian” — witnesses.

The only way to stop the great train wreck of the republic is to remember that it’s not a matter of “us versus them.”  We’re all on this train together.  Fundamentally, we’re all the same in our drives, our motivations, and our willingness to paint the picture of a world where we are always right.  But officers must hold themselves, and be held, to a higher standard, because our republic cannot survive if we cannot trust those whose job it is to enforce its laws.

Two things should be noted before I “get into it.”  First, whether the court or anyone else believes me on this, I’m writing this because a driving force in my life is the Jewish concept of tikkun olam. In other words, I want to work cooperatively to leave the world a better place than it was when I arrived.  If I can’t do it cooperatively, though, I will nevertheless work to do it.

The second thing is the corollary to that desire: I’m not writing this to further anger the judge (though given the court’s refusal to give serious consideration to this issue, that may be a sadly unavoidable side effect of my comments).  Rather, I wish to explain what I was unable to say due to the chilling effect of the court’s reaction to my off-the-record comment — and to the fact that others had started to filter into the courtroom.  I’m hopeful — since I know some judges read my blog — that this post might help explain why it is the right for the court to change its position on this one issue, and why it should be ashamed if it does not.

So what were we talking about?  And what did I say that so enraged one of the few judges I would love to be able to call my friend?

In a word: “Shackles.”

Okay, maybe you need more of an explanation than that.

One of my “pet peeves” has to do with the practice of shackling juveniles in court.  There’s no other way to put this, so I’m just going to come right out and say it here:  It’s illegal; it’s unnecessary; it’s shameful.

Now I don’t know if other attorneys have pet peeves — things that just set them off — but this one is mine.  It’s not necessarily because I agree with the United States Supreme Court or the Second District California Appellate Court, either, when they said:

[T]he use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.  (Tiffany A. v. Superior Court (2007) 150 Cal.App.4th 1344, 1355-1356 [59 Cal.Rptr.3d 363], quoting the United States Supreme Court in Illinois v. Allen (1970) 397 U.S. 337, 344 [90 S.Ct. 1057, 25 L.Ed.2d 353].)

No, the reason it’s a pet peeve of mine has more to do with the fact that unlike most of the judges in the Juvenile Court system, I have some training and experience — which following the rules applied to gang cops testifying in gang cases, should make me an expert — in the psychology of children and adolescents.  Plus, I’ve read innumerable reports of child psychologists concerning the impact of shackles on the children the court unflinchingly places in them.

Shackles have no place in the courtroom, particularly in the juvenile courtroom.  If we paid more than lip service to the law, I would not even need to write this post.  For the law clearly states:

No person charged with a public offense may be subjected, before conviction, to any more restraint than is necessary for his detention to answer the charge. (California Penal Code section 688.)

So how much restraint is necessary for the detention of juveniles in the Fresno County Superior Court?

Consider this:

• While the waiting areas for families of juveniles at the court are quite small and uncomfortable, the courtrooms are massive and architected for intimidation.
• There is an armed bailiff in the courtroom.  I know they carry guns.  I believe they also have tasers.  There is not infrequently more than one such bailiff.
• The kids enter the courtroom — usually in full shackles — from a holding cell the door for which connects directly to the side of the courtroom.
• It is impossible to enter or exit a juvenile courtroom in Fresno County through any door without a special key.
• To get to the door connecting the courtroom to the outside hall, a juvenile would have to get up from his chair, run through or jump over the swinging door that separates the “gallery” from the counsel table, push open a heavy solid (unlocked) door, and run to the next door which, as already noted, he could not open without having first acquired a special key.  All while being pursued by at least one armed bailiff, as noted above.
• Even ordinary defense attorneys such as myself do not have access to these special keys.
• Even with a key, the door cannot be opened from the outside, so no one could assist the juvenile in escaping.
• Even if the juvenile could somehow get out that door, the kid would have to get down to the first floor and past several other armed deputies before he would be outside the courthouse.
• Fresno law enforcement officers are not afraid to shoot people.

In this situation, it is impossible to argue — with a straight face and an honest heart, anyway — that shackles are “necessary for [the] detention” of any juvenile in the Fresno County Juvenile Court.

So why are juveniles shackled?  Because that’s how the Sheriff’s Department wants it.  Oh, I know.  I know.  The law clearly states that

the requirement that the record must show a “need” for shackles “also presupposes that it is the trial court, not law enforcement personnel, that must make the decision an accused be physically restrained in the courtroom. A trial court abuses its discretion if it abdicates this decision-making responsibility to security personnel or law enforcement.”  (Tiffany A., supra, 150 Cal.App.4th at 1357, quoting the California Supreme Court case of People v. Hill (1998) 17 Cal.4th 800, 841 [72 Cal.Rptr.2d 656].)

But now matter how much trial courts pretend to follow the dictates of the legislature and the California Supreme Court, the truth of the matter is that the Sheriff’s Department decides who gets shackled and who does not.  Any defense attorney — which, right now in Fresno means me — who challenges this decision will find that although everyone knows the reason is “policy,” the court will then give the deputies at least an hour after a challenge to come up with an excuse why “the court deems shackles to be required” in any particular case.  Tell me, judge, if the law says that shackling requires a particularized reason and that the court cannot abdicate responsibility for this decision to law enforcement, then why does it take an hour after a challenge to find out the reason for the shackles?

I’ll tell you why: because we’re lying when we say that the real reason for shackles has anything to do with an individualized case-by-case decision of the court.  It is the Sheriff’s Department who decides which child is shackled and which child is not.

And the Sheriff’s Department wants to shackle these children for the very reason that

placing the criminal defendant in shackles “‘imposes physical burdens, pains and restraints upon a prisoner during the progress of his trial, inevitably tends to confuse and embarrass his mental faculties, and thereby materially to abridge and prejudicially affect his constitutional rights of defense….’ “  (Tiffany A., supra, 150 Cal.App.4th at 1355, quoting People v. Duran (1976) 16 Cal.3d 282, 288 [127 Cal.Rptr. 618].)

In other words, it cows them, makes it harder for them to think of anything — particularly anything the deputies don’t want them to think about — and thus makes them easier to control.  But, as the full context of the quote shows, this is the very reason the California legislature made it illegal to shackle accused adults — let alone juveniles! — way back in 1872.  I might add that it was a lot easier for prisoners to disrupt proceedings and escape in 1872 than it is today!

Most criminal defense attorneys do not protest when their clients — the kids — are brought to the courtroom in shackles.  In fact, I do not believe there is one criminal defense attorney other than myself who regularly comments upon, or objects to, the shackles.  If I am involved in a co-participant case, so that there is another attorney present on the same case, they will sometimes join my objection.  (For various reasons, I have not objected in every case.  However, that, I can assure you, is about to change.)  So to the shame of the courts, we should add the shame of defense counsel.

“Pick your battles,” these defense attorneys tell me.  In other words, the shackling of children is not an important issue in their eyes.  We have other fish to fry.  But this isn’t just any battle.  This is a battle that goes to the core of our rehabilitative efforts for these kids.  If the courts won’t see it, we must help them.

The use of shackles in a courtroom absent a case-by-case, individual showing of need creates the very tone of criminality juvenile proceedings were intended to avoid.  (Tiffany A., supra, 150 Cal.App.4th at 1362.)

Shackling our kids teaches them that they are criminals.  Don’t be surprised that when they come to see themselves this way, they become harder to rehabilitate.  We aren’t just shackling their bodies; we’re shackling their self-image.

Our kids are routinely brought in in shackles because it is the policy of the Sheriff’s Department that they be shackled.  No matter how much we — the court, defense attorneys, prosecutors, probation officers — pretend otherwise, it is the Sheriff’s Department which makes the decision.  And that decision is based upon policy, although the judges, prosecutors and deputies are quick to collude in the lie that it is not if and when they are challenged.  (I’m sorry, judges — especially the one who “inspired” this post — but I’m calling it a lie because a lie is just what it is.  And you all know it.)

Off the record and in unguarded moments, this is readily admitted.  When I first started objecting, I even got statements about this on the record.  The more challenges I bring, though, the more careful everyone becomes with the way they couch their explanations.

Frankly, that’s a further reason the court should be ashamed.

Now, ultimately, this post boils down to this.  The court very much to its credit started this off-the-record conversation by explaining as this particular judge is very kind and good about doing that it’s good to explain things to families, because when they hear phrases like “602″ and other statutorily-required language by the court, they get the impression their kids are just being processed like so much bad meat.  (This isn’t exactly how the court worded it; this is what the court correctly recognized.  The court usually uses nicer words than I do.)  The court noted this can breed disrespect for the court.

As we were talking off the record — and as I already said this is a pet peeve of mine — I chimed in that bringing all the kids into court in shackles does the same thing.  This, as the court itself said, upset the court very much.  In fact, the court stated that it found my comment to be “disrespectful to the court.”  (Oh, the irony.)

Judge, if you do in fact read this, I want you to know something.  I actually have a great deal of respect for you.  As I already said, you’re one of the few judges I’d be pleased to call a friend, if that ever becomes possible.  But you’ve misplaced your anger and concern over the question of disrespect.

As the California Supreme Court so succinctly put it: “the disrespect for the entire judicial system…is incident to the unjustifiable use of physical restraints….”  (Duran, supra, 16 Cal.3d at 290.)

I recently ran across one of the small things in this passage from Sinclair Lewis’s It Can’t Happen Here:

“Remember our war hysteria, when we called sauerkraut ‘Liberty cabbage’ and somebody actually proposed calling German measles ‘Liberty measles’?”  (Sinclair Lewis, It Can’t Happen Here (2005 ed.) p. 17, originally published in 1935.)

Can I interest you in some “freedom fries”? 

There’s a situation that’s been brewing for quite some time in Maricopa County, Arizona.  Although more than one of my friends have blogged about it, including Scott Greenfield (criminal defense attorney in New York, New York), Brian Tannebaum (criminal defense attorney in Miami, Florida) and, particularly, Mark Bennett (criminal defense attorney in Houston, Texas), I’ve found myself wanting to delve a little deeper before tossing my hat into the ring.

Aside from my usual tendency to over-prepare for things, I think the reason is because early on I saw the connection between this and my beliefs about how police states are born.  (Some) People I’ve talked to about this scoff, but I believe we’re living in a nascent — maybe “prenatal” — police state in America right now.

And I wanted to dig into this a little more; not just to discuss Maricopa.  I wanted to show exactly why Maricopa and Chief Arpaio are so scary. 

Police states, as I’ve said before, don’t spring into existence fully-formed, as Athena did from the forehead of Zeus. 

First, there is the beginning of a gradual, even imperceptible, erosion of “the rule of law.”  After all, if the rule of law remains in place, the police state — which is a major tool for “the rule of man” — cannot come into existence.  The erosion of the rule of law prepares the ground for the police state.  If I were to stick to the allusion I made above of pre-natalism, I’d say ”the erosion of the rule of law prepares the womb for the birth of a police state.” 

Seen in this light, Maricopa is just another step in the transformation from the rule of law to the rule of man.  It is a demonstration of fertility.

Once started down the path — once fertilization occurs – a symbiosis develops.  The erosion of the rule of law is accentuated by the nascency — the beginnings — of the police state. 

By the time the average person recognizes that a police state exists, it is too late.  The police state has grown up enough to survive outside the womb.  The rule of law is gone.

People don’t think about this much.  Perhaps it’s because the so-called Godwin’s Law teaches that the minute you start to compare something or someone to Hitler and the Nazis, you’ve lost your argument.  That’s usually — perhaps nearly always — true.  But it cannot be always true because if it were, that would mean that there never can be anything that can compare in any way, shape, or form, to Hitler and the Nazis. 

To believe that is not only stupid, it is the most surefire way to ensure that another Hitler, another Nazi Party, another repressive regime will “surprise” us.  By refusing to consider how free democratic republics — such as pre-Nazi Germany was — turn into fascist dictatorships, we leave ourselves wide open to them.  It’s like ignoring the obviously gravid woman and being surprised when her child is born.  What?  Did you think she was just fat? 

The rule of law began taking hits almost from the time the Founders of the United States initially embraced it.  The desire to control others, which is a necessary (but not sufficient) precursor to fascism, is not at all an abnormal desire.  I’m not immune from it, however much I’d like to think I am, and neither are you.

Nor is the push to control always wrong.  Nobody — and that includes me — wants to live in a completely anarchic society.  No one — and that includes me — wants to see those who murder, rape, steal, or otherwise harm society freely roaming the streets, plying their illicit “trades.” 

Unfortunately, it is here, where we are weakest and most emotional, that the Joe Arpaios of the world find purchase on our souls. 

On a day in late October, suddenly striking in every city and village and back-hill hide-out, the Corpos ended all crime in America forever, so titanic a feat that it was mentioned in the London Times.  Seventy thousand selected Minute Men, working in combination with town and state police officers, all under the chiefs of the government secret service, arrested every known or faintly suspected criminal in the country.  They were tried under court-martial procedure; one in ten was shot immediately, four in ten were given prison sentences, three in ten released as innocent…and two in ten taken in the M.M.’s as inspectors.

There were protests that at least six in ten had been innocent, but this was adequately answered by [President of the United States] Windrip’s courageous statement: “The way to stop crime is to stop it!”

The next day, Medary Cole crowed at Doremus, “Sometimes I’ve felt like criticizing certain features of Corpo policy, but did you see what the Chief [as they called the President] did to the gangsters and racketeers? Wonderful! I’ve told you right along what this country’s needed is a firm hand like Windrip’s.  No shilly-shallying about that fellow!  He saw that the way to stop crime was to just go out adn stop it!”  (Sinclair Lewis, It Can’t Happen Here (2005 ed.) pp. 206-207, originally published in 1935.)

With this — the illegal acts which “ended all crime in America forever” — the fascist President Windrip of Sinclair Lewis’s It Can’t Happen Here temporarily beat down the concerns of ordinary Americans for what fascist tendencies he had already exhibited.  Maricopa County residents — including, amazingly and shockingly, an attorney — approve of Arpaio’s actions and seem unperturbed by what they actually signify.  Arizonans — not just those living in Maricopa County — are similarly pleased with Sheriff Arpaio for his attitude toward “criminals.”  Nor is Arpaio himself apologetic for his obvious abuses of power. 

Nevermind that Arpaio’s tactics have brought widespread criticism from Jewish groups such as the Anti-Defamation League and the American Jewish Committee (who well-recognize what happens when fascism goes unanswered), as well as the Arizona Ecumenical Council (a Christian group of churches) and the much-reviled protector of civil liberties, the ACLU.

This is how police states are born!  These Arizonans and all who share their opinion about Arpaio are why it can happen here!  As Doremus Jessup, the “hero” of Sinclair Lewis’s book noted:

“The tyranny of this dictatorship isn’t primarily the fault of Big Business, nor of the demagogues who do their dirty work.  It’s the fault of Doremus Jessup!  Of all the conscientious, respectable, lazy-minded Doremus Jessups who have let the demagogues wriggle in, without fierce enough protest.

“A few months ago I thought the slaughter of the Civil War, and the agitation of the violent Abolitionists who helped bring it on, were evil.  But possibly they had to be violent, because easy-going citizens like me couldn’t be stirred up otherwise.  If our grandfathers had had the alertness and courage to see the evils of slavery and of a government conducted by gentlemen for gentlemen only, there wouldn’t have been any need of agitators and war and blood.

“It’s my sort, the Responsible Citizens who’ve felt ourselves superior because we’ve been well-to-do and what we thought was ‘educated,’ who brought on the Civil War, the French Revolution, and now the Fascist Dictatorship.  It’s I who murdered Rabbi de Verez.  It’s I who persecuted the Jews and the Negroes.  I can blame no Aras Dilley, no Shad Ledue, no Buzz Windrip, but only my own timid soul and drowsy mind.  Forgive, O Lord!” 

(Sinclair Lewis, It Can’t Happen Here (2005 ed.) p. 186, originally published in 1935.)

Hopefully, Maricopa County will turn out to be just another Beer Hall Putsch.  But this does not mean we do not need to be concerned.  Hitler’s push, after all, did not end with the putsch.

That was just the beginning.

It can happen here.