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It Can't Happen To Me

More people than normal are reading my blog the last few days.

Given that a few weeks ago, after I was confronted by members of the Fresno County Sheriff’s Department — more on this later — and wrote about it, I received 5,000 visitors in one day, and though it has dropped off quite a bit since then, even without writing much more my traffic stats are still quite high, that’s saying something.

And why are they coming?

According to the admin page of my blog, they’re searching for things like “what happened to constitutional rights boston” and “boston suspended constitution,” etc. Most of those people are apparently finding last Saturday’s post, “Life in a Post-Constitutional World”; that post alone is still getting well over a hundred reads per day.

All of this occurs against the backdrop of something I didn’t see, and I’m glad for that, because I almost certainly would have vomited: crowds allegedly lining the streets and cheering the police.

WTF? Did you really just say that, Rick? You would have vomited to see the crowds lining the streets and cheering the police?

Yes. I would.

Maybe it’s because I’m descended from Jews. Maybe it’s because I’m a fan of George Takei, part of whose American childhood was spent in an American Japanese internment camp.

Maybe it was because I saw this video.

So cheering crowds…it’s a bit of a change from how Boston used to react to the police acting as an occupying force.

There are some who say that the “Incident on King Street” (as the British called it) was the spark that led to the Revolutionary War. And, of course, it was the Revolutionary War that led to the creation of “a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.”

Now Boston is beginning to look like both bookends for an historical tome about what was once — as Alexis de Tocqueville called it — “The Great American Experiment.” If it’s true that the “Boston Massacre” helped to start the Revolution which birthed our nation, it is equally true that the Boston Marathon Bombing seems to have brought that nation to its death.

There is nothing really new in the Boston Bombing. It’s not even the first time some idiot allegedly motivated by politics set off bombs at a public event.

Nor is it new that people are decrying the potential provision of — note that I did not say “recognition of” — constitutional privileges to the now-captive alleged criminal. As George Carlin famously said:

Rights of Temporary Privileges

These privileges, which our forebears stupidly believed were “unalienable,” have been consistently eroded by the steady drips of those who would have us believe the Constitution only enables criminals. And those who would do things the majority of us don’t like, living according to principles with which we disagree.

The drumbeat of Democracy demands that “majority rule.” This is a concept inimical to the United States Constitution. Our founders despised and feared Democracy because they knew the vagaries of mob rule were destructive of freedom. The Constitution of the United States was expressly written to protect minorities — even a minority of one, such as a criminal defendant — against a government acting at the behest of, or on behalf of, the mob, or “majority rule.”

And so it appears — though I so very much hope that I am wrong — that we are reaching the culmination of The Great American Experiment. For all practical intents and purposes, it has looked to me for a long time as though it ended some time ago. But I fear we’re about the business of making it official.

As the pseudonymous writer “Gideon,” a.k.a., “apublicdefender,” points out in a terrifying report, the charge to castrate the Constitution is not limited to the uneducated. It includes law professors.

(Wait. Did I just say “not limited to the uneducated,” and then mention that it included the uneducated?)

What they’re proposing, when it comes down to it, is to grant the entire law enforcement community and the military industrial complex in America the authority to detain any person in the United States, regardless of their citizenship, for a period of time up to a week or longer, for whom there is a hunch – a suspicion? it’s not really clear – that there is involvement in “terrorist” activity. During that detention, that person can be interrogated – civilly, of course – without lawyers, forced to answer and then have those answers used against them in court.

Why? Because our Constitution has too long coddled criminals. Mobs demand blood. And they demand it now. And — goddamit! — trials take time, especially if the criminals are allowed to clam up and refuse to incriminate themselves.

These aren’t ordinary criminals, you say. They’re terrorists!

But as Mark Bennett notes,

when the gov­ern­ment talks about “ter­ror­ists,” they’re talk­ing about the peo­ple who they can claim are ter­ror­ists. And when they are talk­ing about the peo­ple who they can claim are ter­ror­ists, they are talk­ing about you and me.

It is worth noting that here in California, where I practice criminal defense, our primary anti-gang statutes come from the STEP Act — the Street Terrorism Enforcement and Prevention Act. Especially after 9/11, the people the Act targets were often referred to as “street terrorists.” In reality, they’re usually just non-white, poor people trying to eke out an existence in certain disfavored areas of the city.

We also have a code section that can even apply to white people, which used to appear on criminal complaints as “terrorist threats.” Of late this is typically called “criminal threats,” or “threats to commit crime resulting in death or great bodily injury,” which is what it really always was. But calling it “terrorist threats” made it so much easier to get convictions, being as how everyone hates “terrorists.”

Ironically, the dysfunction that afflicts us is the same one that leads criminals to do what they do. The problem is a lack of empathy. We can’t imagine being “a criminal.” And because of that, we can’t imagine that anyone might mistakenly think we are “a criminal.” When it comes to imagining we might actually need constitutional protections in such a situation, we just can’t. “It can’t happen to me,” we think, “because I would never be a criminal.”

But it can. Innocent people are mistakenly thought to be criminals far more frequently than most imagine. Those incidents usually don’t make it into the news, and thus don’t usually make it into public awareness. But it happens. It even happened in the Boston Marathon Bombing. It happened to Sunil Tripathi (who, sadly, is apparently a missing person as I write this). It happened to Salah Barhoun, and another individual. The New York Post repeatedly misidentified the bombing suspects.

And the identification of innocent people as public threats, dangers, or outright criminals, isn’t limited to situations like this. It is a frequent occurrence in the ordinary lives of ordinary people, especially for people accused of heinous crimes, but also for those who do things government officials don’t like, as I recently did.

I opened this post by mentioning my own run-in with the Fresno County Sheriff’s Department. For details, see my earlier post, “Overlords.” For purposes of today’s post, I just want to point out that I continue to be the only attorney who, upon entering any courthouse in Fresno County, is thoroughly searched. Sometimes I am “only” required to empty all my pockets. Sometimes I am “just” examined with a “wand” after going through the regular metal detector everyone passes through, the beeping of which is ignored for every other attorney except me. Just as often, I am given a thorough frisky patdown, and asked to lift my trouser legs to show off my classy socks. I stopped taking my briefcase — although I’m thinking of starting to use it again and just endure the search because I’m tired of not having everything I need when I need it in court — because after it goes through the x-ray machine, the deputies then open it, remove everything inside it, and then open everything that was inside, including pencil cases.

Because everyone hides guns, bombs, and other weapons of mass destruction inside pencil cases.

These days, I usually go to court “armed” only with a single fountain pen, reading glasses, cell phone, wallet with useless identification, and the file needed for that appearance. I don’t even carry the keys to my office, or any pocket change. It saves time getting through the search.

And why am I searched? Because I wrote something they didn’t like. The searches are my punishment.

And what did I write? I wrote that if our government was not going to obey its own laws, then we need to revolt.

I have written about revolution in America for years. Even before I was a lawyer, I was disturbed by a trend that seemed — and seems — to me to be accelerating. I firmly believe — and I know from talking to others that I am not alone in this — that there will be someday be a fantastic upheaval in America that would justifiably be called a “Revolution.” I don’t know what form it will take, but I suspect there’s a good chance it will involve violence, if for no other reason than the fact that the government will try to suppress those who revolt. I don’t know if it will be State versus Federal (for example, if a state really does try to secede, as some have suggested). I don’t know if it will be the poor finally rising up against the rich, in which case the government will (of course) fight for the rich. I don’t know if it will just be that so many of us will have been declared “criminals” that we will no longer respect the law enough to keep following it while our government does not.

My beliefs about the creeping fascism of American government are a big part of what caused me to become a lawyer. (I didn’t know that at first. When I went to law school, I thought I was going to practice technology law. I realize now that I was doomed to be a criminal defense lawyer from the start.)

Yet despite these beliefs — and all the years I’ve felt this way — I have never once bombed, shot, killed, maimed, or even punched a government employee.

Nor would I.

Instead, I went to law school. And I write. My goal, sadly unrealized for the most part, is to work within the system to change things, and to educate people with the hope that a real revolution of the bloody sort might never be thought necessary. Yes, I admit that I think it’s probably inevitable that there will be a violent revolution in my lifetime, but I’m doing my part to see if we can’t turn things around so that it isn’t. (And if a real revolution ever does start in my lifetime, nobody — including me — knows what side of it I will be fighting on, because we don’t know why it’s going to start, who’s going to start it, or what the “sides” will be advocating.)

Theoretically, the privileges still begrudgingly granted by the government kinda-sorta tolerate people like me.

At least I haven’t (yet) been arrested. Although there was some reason to believe that when they first found my writing, and were in the heat of anger, this was being considered. Apparently someone convinced them the “terrorist threats,” er…excuse me, the “criminal threats” charges I heard were being considered would not stick.

I wonder what will happen when — because none of you can imagine being me, or a criminal, and especially not a “terrorist” — all of our privileges are gone.

Because I guarantee you, take one look at the ordinary people being yelled at, pulled at, and extracted from their houses, arms up in the air and multipled high-powered (semi?) automatic weapons pointed at them by what are essentially locally-housed soldiers — some carrying scared-shitless children — and unless you’re really, really stupid, or completely lacking in empathy, you’ll realize that it can happen to you.

Because to paraphrase Mark Bennett,

when the gov­ern­ment talks about “people who shouldn’t have constitutionally-protected rights,” they’re talk­ing about the peo­ple who they can claim shouldn’t have constitutionally-protected rights. And when they are talk­ing about the peo­ple who they can claim don’t deserve constitutionally-protected rights, they are talk­ing about you and me.