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.

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.

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.

Am very impressed with citizens['] rights in your country….I should say cops in our country take us for a ride and just twist things as per their whims [a]n[d] fancies as we have no clue of our rights.

I responded:

Pretty much the same thing happens here. If you’ll notice in my post, I mentioned that the police are allowed to lie to you. This is something they do in nearly every encounter with a citizen they wish to question or arrest; in other words, in almost every encounter with a citizen.

As Scott Greenfield has noted in The Worst Kept Secret: Cops Lie, the lies may be little, or they may be large, but they will lie.  (Click on the title of Scott’s post in this paragraph to read it; unfortunately, hyperlinks are the same color as quoted text on my blog. I should fix that.)

And the most common lie is to make people think they don’t have rights and must do exactly as they are told in every instance. Cop wants to search your car? A scenario like this has been known to evolve:

“I’m going to search your car, okay?”

“No. Why? I didn’t do anything.”

“If you didn’t do anything, then you have nothing to hide, right? So let me search your car. I can search your car. So, okay?”

The poor submitizen says, “Ummm…” and sometimes even, “Ok” in response to the officer’s assertion that he can and will search the car. However, when it later goes to court, the officer will say that the submitizen “consented” to the search. The officer takes the submitizen’s failure to continue to object, or his use of the word “Ok,” which was meant as “Ok, if you say you can search my car, then I can’t stop you,” and uses that for the basis of the officer’s — not the submitizen’s — decision that the submitizen consented.

I call that “just twist[ing] things as per their whims [a]n[d] fancies as we have no clue of our rights.”

And this is usually the case with unbridled authority. That’s why the Founders of the United States tried to bridle authority.

Since then, I’ve been thinking about this situation a lot more than usual.  It’s not just the post that focused me: an increasing number of cases I’m either consulting on or which belong to my own clients have suddenly started “going south” because officers testify that the accused people “consented” to the searches.

Sure, these questionable “consent” cases aren’t totally new — police officers have lied about “consent” probably since the beginning — but nowadays, it seems like everyone is consenting to searches.

I have to ask myself, though — and I hope you will, too — does it really make sense to believe that someone with 500 lbs of marijuana in their apartment, some of which was lying in plain sight in a bathroom, would consent to allow officers to search without a warrant?  Does it really?  And if someone has a gun under the front seat of the car and a bunch of meth in the trunk, would they tell the officer that they had “no problem” with a search of the vehicle, including a search that included the insertion of a canine?  Really?

I don’t think so.

No, what’s happening, increasingly, is that officers are telling people that their cars are going to be searched.  They aren’t asking.  And when the people either hand over the car keys, or even if they just don’t object when the officer reaches into their pockets to remove the keys, the officer later testifies that the individual “consented” to the search.

I don’t really know how to fix this.  I’m writing this blog article for two reasons.

For one thing, I’m hoping John Q. Public will read the article, realize that this stuff really does happen, and maybe object a little more strenuously to unconstitutional searches, even when it’s not directly impacting them.  Maybe they’ll write their congressional representatives and share their concerns about the increasingly unbridled police power.  As Martin Niemöller is alleged to have noted:

First they came for the communists, and I did not speak out—because I was not a communist;
Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist;
Then they came for the Jews, and I did not speak out—because I was not a Jew;
Then they came for me—and there was no one left to speak out for me.

When the rights of “the obviously guilty” are abrogated, the abrogation of the rights of the rest of us is not far behind.

For another thing, maybe people being stopped by the police will be more clear, from the very start, that they don’t agree with the officer’s assertion that he has a right to search their car.  If there are others present, try to remember who they were, so your defense attorney can have them questioned and possibly subpoenaed to testify.  But be crystal clear that you are not consenting to a search.

It does not matter if you think you have nothing to hide.  An officer who will lie may also be an officer who will plant evidence.  Don’t say, “Well, just do what you’ve gotta do,” or “whatever,” or in any other way indicate that you are not continuing to object to a search.  OBJECT!

In the end, so long as the judges without a conscience are going to pretend police officers aren’t lying, even when they realize that they are, this may not do much good.

But there’s no reason to make it easy for them.

And if you’re ever called to serve on a jury, remember this: I’m not saying police officers lie all the time.  But they do lie. So how about we subject their testimony to the same evaluation we give any other witness? Don’t just give them the benefit of the doubt based solely on the uniform, badge, or gun. Remember it’s your job to decide the case; not theirs.

Let’s put back some of the bridles on authority that the First Americans established.  After all, the United States became a great nation and beacon of freedom because of what they established.  Seems to me that shows they knew what they were doing.

If worms carried shotguns, robins wouldn’t eat them.

Not infrequently, as a child engaged in excessive contingency planning, I found this response nothing short of irritating.  As a rational adult attorney, I have found myself quoting this maxim with some regularity.

A bold headline on page B1 of the Fresno Bee today states that a 10-year-old boy is being held in the shooting death of his father.  As a criminal defense attorney increasingly practicing juvenile defense in the Fresno, Madera, Kings and Tulare counties of central California, the story naturally caught my attention.

The story itself is — I’m quite sad to say — mundane, bordering even on the banal.  American culture these days virtually requires that children, from at least the frequently stressed and overworked middle-class on down, raise themselves with little to no parental guidance.  Our young are no longer inculcated with whatever values naturally-individualistic Americans might have that would encourage respect for others, even parents.  The sort of internal controls necessary for society building are increasingly absent.

Not surprisingly, it has become normal for children — who lack the maturity to make rational decisions when it comes to restrictions on their behaviors anyway — to shoot people, including their parents, who get in the way of their perceived unbridled right to do as they want, when they want, how they want.  Hell, it’s become normal for adult Americans to behave this way.  Just last week, another driver, irritated because he had to speed up to merge in front of me (in other words, irritated because I followed the traffic laws of the State of California and expected him to either speed up or slow down as necessary to safely merge), expressed his irritation by throwing what appeared to be a large beer bottle at me on the freeway.

But I digress.

Another story in today’s Fresno Bee discusses a case that is currently riling the “we’re too soft on crime” crowd.  Forget that California’s prisons are grossly overcrowded, requiring federal judges to order the release large numbers of prisoners to leave enough breathing room for those who remain.  Forget that our laws are already among the most draconian in the nation and that therefore California leads the pack — competing even with other countries for the lead — in locking up its citizens.  Forget that most of the laws do not and cannot actually achieve their desired goal.  Forget that all this is the primary reason California is going broke and unable to fund important social programs (like schools).  A “parolee” and registered sex offender is in the news accused of kidnapping an 11-year-old girl and holding her hostage for 18 years.

This is a hard case.  Unsurprisingly, it appears set to help create bad law — or at least prevent the passage of good law.  Comes the cry from Repugnicans, this case is proof that our laws are too lenient.  We need tougher laws than those already bankrupting California.  We should not be letting prisoners out early.  We need to lock people up longer.  Hell, if you commit a crime — Repugnicans don’t seem to care how trivial — you should never get out of prison.  Ever. As in “E-V-E-R” for the rest of your natural life.  The Taliban got nothin’ on California Repugnicans.

If we let someone out early, and that man commits a crime, the Assembly members are worried that will come back to haunt them like the old famous Willie Horton ads.  (Quote from “a prominent state politician” in Carol Pogash and Solomon Moore, “Prisoners may be affected” (August 31, 2009) The Fresno Bee, p. A8, col. 1.)

Yet anecdotal evidence that some few criminals may commit such heinous crimes derails the debate on the humane treatment of prisoners in California through the early release of low-risk offenders.  As Scott Kernan, a deputy secretary for the California Department of Corrections and Rehabilitation notes,

a man who had committed crimes like those that sent [Phillip] Garrido to prison initially would never have been released early from prison under the proposed law.

“The bill doesn’t reduce supervision on sex offenders,” Kernan said.  “It would affect nonviolent, low-risk, nonsex offenders.”  (Pogash and Moore, supra.)

But Californians, and Americans generally, are increasingly incapable of the level of sophisticated thinking — the level required to function effectively in life beyond the third grade — to process this information.  The Repugnicans considering laws that would safely reduce the inmate population in California are too much like the woman living next door to the 10-year-old, mentioned above, who shot his father:

Next-door neighbor Elaine Sanchez said they were “just regular neighbors that we used to say hi and bye to.”

Sanchez said her daughter played with the 6-year-old girl.

“We live just a few feet from them.  My little daughter likes to go out and ride her bike and now I keep thinking, ‘What if she had been hit, too?’”  (“10-year-old boy held in shooting death of his father” (August 31, 2009) The Fresno Bee, p. B1, cols 4-5.)

What if worms did carry shotguns?

In 1968, the United States Supreme Court said,

This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs. For, as this Court has always recognized,

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

(Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868 (1968), quoting Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891).)

But as Bill O’Reilly would say, “That’s what the people who are paid for hating America want you to think.”

According to O’Reilly, “once riddled with violent crime, New York is now largely safe, thanks to aggressive policing.”  The police in New York are “proactive” about crime, stopping it before it occurs.  O’Reilly goes on to point out that “thousands of lives have been saved.”  Sounds pretty good! I want to know more about this “proactive” policing!

As it turns out, “proactive policing to stop crime before it occurs” means “if we see someone on the street and we’re not busy with something else, we’ll stop ‘em, frisk ‘em, question ‘em.”  About nine out of every ten of them will be completely innocent of any crimes; they’re just minding their own business, going about their ordinary daily lives; those nice docile submitizens will be allowed to continue on their way.  They shouldn’t really mind that, should they, if they have nothing to hide?

Meanwhile, thanks to the cooperation of those nine out of ten, New York — and AmeriKa! — will be a safer place.

How will we decide which of the people we see walking down the street to stop?  Well, apparently one of the major pieces of criteria is skin color.  African-Americans are stopped much more frequently than white.

“What do you want from us?,” O’Reilly seems to ask.  “Sixty-nine percent of New York City violent crime victims, describe their assailants as ‘black.’”  Only “five percent are described by the victims as ‘white.’”  So, again, “what do you want from us?”

It’s hard to believe O’Reilly actually says this, but he says, “If you’re investigating and trying to stop crimes, to whom would you be talking?”

BLACK PEOPLE! I mean, come on!

There are a couple of problems here, of course, not the least of which is the constitutionally-endorsed belief that

It [a public stop and frisk of a citizen] is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.  (Terry v. Ohio, supra, 392 U.S. at 17.)

The second is the implication that because just over two-thirds of victims report (sometimes mistakenly) that their assailants were black, the overwhelming majority of the 151,000 people stopped in the first three months of 2009 should be, too.  Makes sense, doesn’t it?  A disproportional representation among the accused seems to me like it should justify impugning an entire class of people, ninety percent of whom will be found to be completely innocent once they are publicly stopped, frisked and interrogated.

To add insult to…well, um…insult, O’Reilly sandwiches his complaint about those people hating America by objecting to these stops in between his complaints about the government risking the lives of our soldiers by releasing images of prisoner abuse at Guantanamo.  And in exactly the same way that the government risks the lives of these soldiers by releasing the photos, so do the haters of America who object to stopping African-Americans for no good reason endanger the lives of those of us at home.

Americans, our problem isn’t Black Terrorists.  It’s the Black Plague of neo-conservatism that threatens us.  Innocent African-Americans and their supporters who object to these unreasonable searches and seizures — yes, I know, when the police stop people walking down the street and refuse to let them go about their business unmolested for a period of time, we prefer to call that a “detention” — anyway, innocent African-Americans and their supporters who object to these unreasonable searches and “detentions” aren’t what we should fear.

The ones we should fear are the “clear-thinking Americans” who seem to believe that by being a proponent of the foundational principles of our nation, the rest of us are “hating America.”

The timing could not have been more perfect.

This morning, thanks to a tweet from @ScottGreenfield, who re-tweeted it from @radleybalko, I encountered yet another similarity between trends in the United States of America and the totalitarian regime of Hitler in an article about a new Boy Scout Explorer program.  It seems that we’re preparing our children to goose-step their way to the Fourth Reich.

Sort of.

The children pictured with the article are clearly not Aryan.  They actually look a little more like dark-haired Hitler than the adored Aryan archetype.  Nevertheless, they are dressed to kill in their 21st-century Stoßtruppen wardrobe with matching automatic weaponry. And Hitler’s accolades regarding those of true German blood are echoed in the words of A.J. Lowenthal, a sheriff’s deputy in Imperial County.  (Imperial County.  How appropriate is that?)

This is about being a true-blooded American guy and girl.

Yep.  That’s what we need more of: True-bloods.  Not those namby-pamby Constitution-hugging liberal muggles like…um…like me, I guess.

Every time I — or others who see the same thing — try to raise the alarm on this, those who don’t see it begin to howl.  So first and foremost let me state, as I have so many times before, what I am not saying here.  I am not saying that the United States of America is currently a totalitarian state that looks in every respect like Nazi Germany.  I am not saying that we must completely abolish our police forces in order to avoid becoming Nazis.  I am not saying all — or even a significantly large portion of — our law enforcement officers are jack-booted thugs anxiously awaiting their opportunity to strip us of our constitutional rights.

For one thing, that’s what we have judges for.

What I am saying is basically what I said yesterday elsewhere: Nazi Germany did not spring fully-formed and fully-armed from the brow of Hitler.  Prior to the takeover of the government by Hitler, the Germans had a constitution not altogether unlike our own in the civil liberties that it “guaranteed.”  When the National Socialist German Workers Party (the Nazis) took over the government, they secured their dictatorial grip over the country by rescinding habeas corpus and other civil liberties.

Sound familiar?  In 2006, the United States Congress moved against habeas corpus.  Of course, it was only verboten for the “unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States.” So who really cares?

But, uh…who gets to decide what an unlawful enemy combatant is?  If American citizens — say perhaps gang members? — engage in hostilities against law enforcement officers of the United States, are they “unlawful enemy combatants,” “street terrorists” to whom habeas corpus should not apply?  Could this be why California’s most well-known piece of anti-gang legislation is known as the “Street Terrorism Enforcement and Prevention Act”?  Could we stop obstreperous criminal defense attorneys like me by arguing that we support hostilities against the United States because of things like writing this blog article and encouraging resistance against laws we feel violate the Constitution?

Not today, certainly.  Not yet.  But though many people — including many criminal defense attorneys — refuse to recognize it, our civil liberties are, with increasing alacrity, being eroded, or outright abolished.  I know this is not appreciated or understood by the majority, but when we suspend the Fourth Amendment at the courthouse door, this is an impingement on our civil liberties.  It does not matter that the reason is “safety.”

The judiciary has a special role to play in regulating the state’s power to search and seize.  Judicial resistance to the writs of assistance had been strong [in the late 1700s], even after the Townshend Acts extended the jurisdiction of colonial courts.  (Andrew E. Taslitz, Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789-1868
(2006), p. 61.)

Yet in modern times, our judiciary not only participates in stripping us of our rights, it leads the charge! Whether we’re talking about warrantless searches of people, including defense attorneys (but not prosecutors), who enter our courthouses, or warrantless searches by customs officials of laptops owned by Americans returning from outside the country, our courts not only ignore the Constitution, they promulgate rules that directly take away what the Constitution “guaranteed.”

How ironic that around 1773, just a few years before the American colonies declared their independence from the British to eventually become the United States of America,

When customs officials filed a new application [for permission to search Americans] accompanied by a supporting opinion of England’s attorney general, the chief justice insisted that he would grant only particular writs under oath swearing that the customs agent knew or reasonably believed that uncustomed goods would be found in a particular place.  (Taslitz, supra.)

Today’s courts fail to comprehend what our Founders clearly understood:

[G]eneral searches were implicitly seen as insulting because they violated principles of individualized justice.  Arbitrary decisions by executing officers could be limited by warrants specifying when, where, how, and whom they could search and seize.  Yet the growing understanding of what made a warrant specific required more.  The increasingly widespread definition of a “special warrant” was one that was both particular and based on adequate individualized evidence that a particular person had committed a criminal act or that the evidence or fruits of that act were in a particular location.  That principle would limit action by all branches of government, including the judiciary.  (Taslitz, supra, at p. 41 (bold-faced italic emphasis added).)

Eventually, the erosion of civil rights is going to irritate ordinary citizens enough that we will increase our resistance.

Fortunately, when that time comes, the Boy Scouts will be ready to help keep us from crossing the street.