RHDefense: The Law Office of Rick Horowitz
Home of Probable Cause: The Legal Blog with the Really Low Standard of Review
I’m not even sure how to write this post. Maybe I should wait. Maybe I should let things “sink in” a bit.
But then I remember, “Silence is Enabling.”
What I’m about to show you is something that should be trumpeted on national — make that international – news. [Read more...]
Many years ago, when there was less knowledge in the world, but people were generally smarter, a doctrine developed — an ideal — which was to form the very basis for a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.
Before going further, let’s dispose of two issues that are of no import to what I’m writing today. First, the use of the term “men” is because I am using the anachronistic quotes — “a government of laws, not of men” and “all men are created equal” — as they were used by the Founders of the United States of America. Second, unless you hold the same heinous position they held, which is that certain “men” were not really “men” — kind of treating entire groups of human beings as a distinct and separate species — then they didn’t really think that “all men are created equal.”
What they meant, though, is the same thing Aristotle said in his Politics, “Law should govern.” No government which was part of the United States of America would be run by despots, oligarchs, or anyone else who could arbitrarily decide when someone should be punished for some perceived slight, or “wrong.”
Today we have evolved as a nation. We recognize that all men, as well as women, have the same “unalienable”1 rights. Today, we would say, “Everyone must be treated the same when it comes to how our laws are applied.”2
But that was how America started. It is not how she is ending. [Read more...]
This post is going to be hard to understand if you are a black-and-white thinker. In fact, it’s so difficult for many who visit this blog to understand that I’m going to start with the disclaimer that I often use when discussing police officers and honesty:
Not all police officers are bad. Not all police officers lie. Not all police officers plant weapons, drugs, or other evidence. Not all police officers ignore the rights of citizens. Not all police officers “bend,” or ignore, our laws. Not all police officers will give someone a tune-up for speaking their mind.
Police officers are human beings. Admittedly, there is a police culture that has shifted in a way that lying and planting drugs and ignoring rights and laws has become common. But because police officers have to be selected from the same species as the rest of humanity, there will always be officers who honestly try to do the best jobs they can possibly do, in the most ethical and law-abiding way.
The problem, of course, is that these days you just can’t tell, by looking at a particular law enforcement officer, whether a particular law enforcement officer is one of those who is being honest, or whether he is one who will lie (especially in court), or plant evidence, or ignore rights, or follow the law.
Therein lies the problem. [Read more...]
I have thought, for some time now, that I knew just how bad things were getting in the United States, in terms of us becoming a police state.
Today, I was shown just how wrong I am. [Read more...]
An article in yesterday’s New York Times caught my attention.
It wasn’t so much because of the topic: the pervasiveness of police officers who lie. I’ve written about that a number of times myself, most notably in my blog article, “Testilying.”
No, it was something else. I’ve always thought that I knew just how bad things are when it comes to the police, but last week I had an opportunity to observe a police encounter up close in a poor neighborhood where I’m pretty sure I may have been the only white person for at least anywhere within easy walking distance. (Even the officer was Hispanic.)
And things are way worse than I thought.
One reason I haven’t been blogging as much lately is I’m too angry. I’d be calling for a bloodbath: shoot all governmental authorities on sight, I’d be saying. To avoid doing that, I’ve just stopped writing much of anything.
Besides, these days Scott is saying it better than I could and without suggesting war.
His solution? Give up. Be honest. The Constitution is dead. Put up signs:
“All persons found within the borders of the United States are subject to search and seizure.”1
While that certainly would usher in a new era of governmental honesty, I find it unsatisfying — to say the least. What we some how must do is to find a way not just to recognize that it is happening and resign ourselves to the inevitable failures those of us who defend the victims of governmental overreaching experience on a daily basis, but to find a way to convince enough people who can still vote that it should not be happening, that it must be dealt with, and that if we don’t stop it, it will eventually consume the rights of us all.
Whew. That was a sentence!
There is an old quote, sometimes thought of as a poem, that has been so-much-circulated in so many different forms that it has pretty much lost its punch. But I beg you to bear with me here — don’t skim over it, saying, “oh, that; yeah, I’ve seen that like a million times.” I know you have. This time, I want you to read it. I want you to go through it slowly, think about the words, and read it. If you’re not willing to do that, you might want to just stop reading right here and skip this entire blog entry, because if you can’t focus for a minute here, you probably can’t focus on the point I’m trying to make, anyway.
When the Nazis came for the communists,
I remained silent;
I was not a communist.When they locked up the social democrats,
I remained silent;
I was not a social democrat.When they came for the trade unionists,
I did not speak out;
I was not a trade unionist.When they came for the Jews,
I remained silent;
I wasn’t a Jew.When they came for me,
there was no one left to speak out.
Don’t get lost in Godwin’s law on this one. First off, it’s a piece of shit “law”: if the police are really acting like Nazis, there’s no reason not to say that. To argue that we should never compare what’s happening in America today to what happened in Germany in the period leading up to the Nazi disaster is to risk ignoring the warning signs should it ever occur again. And don’t think it can’t happen here. As I’ve noted more than once previously (yes, I’m going to quote myself), pre-Nazi Germany wasn’t all that different from the United States today:
As alluded to above, even Nazi Germany didn’t spring fully-armored from the brow of Zeus. There really was a time in Germany, before the reign of the Nazis, in which there were constitutionally-protected freedoms. As Ingo Müller has pointed out, the German legal system was brought down not overnight, but over a period of time, by “the doctrine of ‘national emergency.’”2
But, secondly, I’m not even trying to argue here that the police are Nazis.
Not yet, anyway.
I want to make what I hope is a simpler and — again, “I hope!” — even less controversial point.
And that is that the abolition of the United States Constitution is not something which necessarily occurs overnight. Like the sand in an hourglass, it dissipates a few grains — or even a grain — at a time, until eventually, it is gone. As Justice Douglas put it:
These civil rights — whether they concern speech, searches and seizures, self-incrimination, criminal prosecutions, bail, or cruel and unusual punishments extend, of course, to everyone, but in cold reality touch mostly the lower castes in our society. I refer, of course, to the blacks, the Chicanos, the one-mule farmers, the agricultural workers, the offbeat students, the victims of the ghetto. Are we giving the States the power to experiment in diluting their civil rights? It has long been thought that the “thou shalt nots” in the Constitution and Bill of Rights protect everyone against governmental intrusion or overreaching. The idea has been obnoxious that there are some who can be relegated to second-class citizenship. But if we construe the Bill of Rights and the Fourteenth Amendment to permit States to “experiment” with the basic rights of people, we open a veritable Pandora’s box. For hate and prejudice are versatile forces that can degrade the constitutional scheme.3
So, for now, we go after “the undesirables,” the lower caste of our “casteless society.” As long as the police stick to that approach, they — that is, the police — are safe. They have time to build their power base, because no one with real power will oppose them.
But, as with the Niemöller quote, or poem, above, it doesn’t necessarily end there. Once our government — particularly law enforcement — crosses that line, it becomes comfortable. Entrenched. It may even sincerely, albeit rarely, apply its newfound power to ignore constitutional limitations against the likes of you, rich man, white boy, judge, senator, out of some perverse effort to show that it is not limited to targeting “the blacks, the Chicanos, the one-mule farmers, the agricultural workers, the offbeat students, the victims of the ghetto.”
It may even believe that.
But it won’t matter. Whatever the reason, the line is crossed. A new culture flowers. American citizens are deflowered. “[L]egal norms [are] forced to yield to political opportunism.”4 Before you know it, everyone — particularly the courts — have given the police a free hand.5
When that day comes, it will be too late. Law enforcement will have become too entrenched. They will have too many drones, tanks, automatic weapons.
And the people who, if the rest of us supported the concept of Law, might have stood against them – ”the blacks, the Chicanos, the one-mule farmers, the agricultural workers, the offbeat students, the victims of the ghetto” — they’ll have long ago been subdued and locked away, so that when law enforcement comes after you, there will be no one left to speak out.
Scott Greenfield may not be blogging anymore, but he’s still a good resource for keeping up with things.1
“If you or I did that to somebody on the outside, you’d be sitting in jail talking to (an attorney)” Arcesi said.
But, as I mentioned in yesterday’s post, those responsible for enforcing our laws take a different approach when it comes to their own behaviors. [Read more...]
The last couple of days, I’ve been pondering something Jeff Gamso wrote, at least partly as a response to a comment I made on his blog. As with a lot of Jeff’s stuff, it’s taking me longer to consider than most things I read. I like that. I like that Jeff makes me think. Too many people in the world don’t seem to spend enough time thinking, or helping others think, these days.
Take these two cops, for instance.
Last night, after a conversation with another attorney about politics, the direction the country is taking, and how the attitudes developing drive law enforcement and the distortions we see in the criminal “justice” system, I published a blog post.
Don’t look for it: I’ve de-published it.
The post was a wonderfully fulfilling piece of venting.
I woke several times in the night, however, thinking about it and considering that it might not be what I wanted for my blog.
What I want for my blog is to use it to explain and to show that what is happening in the world of criminal “justice” is not at all what you — and I’m hoping by “you” that I’m targeting ordinary people; not just attorneys; not just the choir — really want.
When I was growing up, every kid knew this jingle:
Liar, liar,
Pants on fire.
Hanging from a telephone wire.
Nevertheless, on September 21, 2010, Chicago Police Officer Sylshina London did what literally hundreds of police officers do every year in the United States: she helped convict someone by lying to a jury.
The practice — far, far, far more common than the average American could possibly imagine — is so widespread that it even has a name: Testilying. And I’ve written about a number of times, particularly in my article of the same name.
I can’t prove that testilying has become more common than it was in the past — part of the problem with testilying is that it’s frequently difficult or impossible to prove — but it certainly appears that officers are increasingly willing to lie. It is possible that the phenomenon has always been more widespread than I knew before I became an attorney, but even older officers with whom I’ve spoken seem to think it has become more accepted among younger officers.
In any event, it certainly is endemic to the system these days.
I think the reason so many officers lie is, to put it simply, because they believe they can. It’s part of the same ethic I was discussing yesterday, when I talked about officers who ignore the rights of the People because they can, because of the “I am the Law around here” attitude. It’s the same thing that causes police officers generally to ignore the Law’s applicability to them in all things, large or small. (How many times have you seen a police officer speeding, without lights or siren? How many times have you noticed them weaving in and out of traffic, again, without sirens or lights? I even once saw an officer sitting at a red light who, without sirens or lights, proceeded through the light after sitting for a few seconds. At least he looked both ways first. Wish I could do that without fear of a ticket!)
The problem with testilying goes beyond the possibility that innocent people might be convicted. It goes beyond sending someone to jail, or prison, and saddling them with a criminal record. Our system, ostensibly about justice (despite what some attorneys believe, it is referred to as the criminal justice system), depends upon fairness in the procedures used to convict even those who are guilty.
Our society continues to support lying police officers because we don’t see them for what they are: destroyers of justice. In a word, they are criminals. More than that, they are the worst sort of criminals, because their lies destroy that which is basic to a free society.
Think about it. A thief, a robber, even a murderer, takes something from a few individuals. Seldom, however, does their crime actually impact the core structures of our society. A lying police officer, though, tears at the very fabric that makes society possible. Without a system that society can trust to “dispense justice,” or “maintain order,” or “redress grievances” in a fair and honest manner, there is no social contract.
This is because, when officers lie in court, there is no Rule of Law. As the Wikipedia article just linked notes:
The rule of law is a legal maxim that provides that no person is above the law, that no one can be punished by the state except for a breach of the law, and that no one can be convicted of breaching the law except in the manner set forth by the law itself. The rule of law stands in contrast to the idea that the leader is above the law, a feature of Roman law, Nazi law, and certain other legal systems.
When a police officer lies in the courtroom, he is putting himself above the law; an individual is potentially being punished not for a breach of the law, but because the officer doesn’t want him to go unpunished; and the individual is not punished in the manner set forth by the law, which requires an examination of testimony which is supposed to be truthful (remember the Oath: to tell the Truth, the whole Truth?).
The ubiquitousness of cameras is, for some people, beginning to bring to light the lies of police officers, as it did with Officer London’s testilying. This is one reason police officers are fighting so hard to make it illegal for ordinary citizens — we the People – to record what they do. Even news reporters are not safe.
Fortunately, some courts are finding such laws a violation of the United States Constitution.
But we need to go farther than simply recognizing the rights of citizens to tape officers. Jurors need to seriously take to heart the questions asked of them when they go in for jury duty: will you give more weight to the words of a police officer just because he wears a uniform? Many times, jurors will tell you that they won’t. Ironically, the truth (cops aren’t the only ones who lie!) is that usually the uniformed police officer is believed over other witnesses, no matter how unlikely the officer’s version — no matter how many other witnesses’ testimony contradicts the police version.
Sadly, when police are the liars, it’s usually the innocent who are burned.
The Law Office of Rick Horowitz provides criminal defense services
in Fresno, Tulare, Kings, Kern, Madera and Merced Counties.