Nicole Black’s recent article in The Daily Record may help snap me out of the funk I’ve been in since the day I wrote Submitizens.
The funk started not so much because of the rules implemented by the court — the day California courts honor the United States Constitution will be a surprising day indeed! — but rather because of the reaction of other defense attorneys to my opinions regarding the newly-implemented rules.
Fear Does Not Trump Inalienable Rights
I alluded to an “attorney” standing nearby on the first day I encountered the new policy of searching, without probable cause and in violation of the United States Constitution’s Fourth Amendment, all attorneys entering the courthouse. This criminal defense attorney derided me to the bailiff for my comments about the unconstitutionality of the act. And, soon, I would learn he is not the only criminal defense attorney who finds no problem with searches lacking in probable cause “because of the safety factor.”
A public defender, for whom I’ve always had the utmost respect, upon hearing that I was researching how to sue the presiding judge for this violation of my civil rights, indicated that he was in agreement with the policy. The reason? One of his clients, he said, once tried to smuggle in a weapon which he was allegedly going to use against the attorney.
Now I understand someone not wanting to be attacked and injured (or worse) by one of his clients in a courtroom. Frankly, I would not like to be attacked by a client, either. (Just one of many reasons I listen to, explain things and fight hard for my clients. But, then, as another criminal defense attorney explained to me, I’m a freak.) Heck, for some reason, I don’t want to be attacked by anyone, either inside or outside of a courtroom. Maybe it’s a Freudian thing, or perhaps I was dropped on my head at birth by some slippery-handed obstetrician.
But here’s the thing: My fear of being attacked by some idiot with a weapon does not justify the abrogation of everyone else’s constitutional rights. At least not “inalienable” rights such as those protected by the Fourth Amendment. In fact, the concern our Founders had for the possibility that someone might think some governmental function — like keeping us safe — would trump inalienable rights is exactly why the Fourth Amendment was enacted.
Avoiding the Violation by Avoiding the Court Does Not Work
And it’s not as simple as one guard suggested when he said, “So don’t come in.” Setting aside the fact that I’m a criminal defense attorney who makes his living by trying to convince the courts that our laws and legal system should be more than a pretense, there are times when I’ve been summoned to the courthouse for jury duty. You cannot refuse jury duty on the grounds that you do not wish to leave your constitutional rights at the front door.
Similarly, for people who have been ordered to appear in court, refusing to enter on the grounds that unconvicted citizens of the United States are entitled to Fourth Amendment protections can and will result in an arrest warrant being issued. Even mere witnesses summoned to testify will find themselves subjected to a body attachment and jail time for the willful failure to abandon their inalienable rights and obey the summons.
The Times, They Aren’t A-Changin’
This morning, one of the court’s enforcers commented that “these are different times.”
In one sense, that’s true. Our Founders would never have permitted such generalized searches without particularized grounds for believing the person to be searched had committed or was about to commit a crime. They well understood the tendency of the government to abuse its power — a limited power given to it by individuals such as myself — and to begin to treat citizens as chattel, as Submitizens. In fact, under the same conditions, our Founders came up with a plan: they started shooting the representatives of the government which violated their rights to privacy and to be free from unreasonable searches and seizures.
The fact that we willingly submit to the government which was created for the limited purpose of ensuring our freedom from the very acts of government which the British forced on early Americans and which are now being forced upon us is proof indeed that times are different.
This, however, is not what the enforcer — who, as another “defense attorney” pointed out, was “only following orders” (where have I heard that before?) — meant by saying “these are different times.” He mistakenly believed that we live in more dangerous times.
In fact, there were significant threats faced by the early settlers which we do not face. The governments — yes, the plural would be appropriate — of America were under constant threat of being overthrown. Americans constantly were concerned with the possibility of having other countries — including most notably Great Britain — impose their will upon our as-yet-unborn nation. Prior to the establishment of the United States, spies such as Benedict Arnold and Major John André plotted against us.
On a less politically-driven basis, settlers in America had to deal with Indians, the French, press gangs (which kidnapped Americans from coastal cities and forced them to work aboard foreign ships), bands of thieves threatening travelers, stagecoach hold-ups, bank robberies and more.
Early Americans Feared Unrestricted Government More Than Other Threats
In spite of these things and the ease with which unrestricted powers of search and seize would have increased the safety of Submitizens, the American people almost refused to approve the formation of the United States by refusing to approve the United States Constitution because it did not acknowledge that the government was restricted in how far it could go towards, among other things, searching its citizens. (Back then, we were not yet Submitizens.)
It is…clear that they viewed the federal group as the greatest potential threat to their rights and freedoms, which is precisely why the Bill of Rights contains so many express restrictions on the power of government officials. (Jacob G. Hornberger, Liberty, Power and the Constitution (September 4, 2006) Freedom Daily/The Future of Freedom Foundation.)
Early Americans knew that,
A democratic government that respects no limits on its power is a ticking time bomb, waiting to destroy the rights it was created to protect. (James Bovard)
Give Them an Inch & They’ll Take Your Freedom
We would do well to remember what our Founders knew when they — in the midst of a world full of people and nations which sought their destruction as a free nation and plotted their complete subjugation — enshrined our pre-existing rights to be free from such searches as those daily forced upon Submitizens today.
Our personal freedoms are not what threatens us the most. What threatens us the most is our failure to recognize just how completely our own government works to undo our constitutional protections. Bill Clinton exemplified this threat in a 1994 MTV interview:
When we got organized as a country and we wrote a fairly radical Constitution with a radical Bill of Rights, giving a radical amount of individual freedom to Americans, it was assumed that the Americans who had that freedom would use it responsibly….What’s happened in America today is, too many people live in areas where there’s no family structure, no community structure, and no work structure. And so there’s a lot of irresponsibility. And so a lot of people say there’s too much personal freedom. When personal freedom’s being abused, you have to move to limit it. (James Bovard, “Democracy versus Liberty” (February 7, 2007) (emphasis added).)
But like our Founders — and unlike the attorneys mentioned earlier in this article who, deserving neither, willingly trade constitutional freedoms for a little security — I’m tired of the government unilaterally abolishing my inalienable rights for the sake of making some of us feel safe.
Together We Stand, Divided We Fall
At any rate, I began this article by saying that Nicole Black’s “Fear and liberty must co-exist” might help snap me out of the funk I’ve been in since the day I wrote Submitizens. And it has; not just because Nicole said what I feel better (and with far fewer words) than I just did, but because she reminded me that I’m not alone. There are real defense attorneys out there who haven’t become Submitizens.
My hope — and my goal — is that we can educate the rest of you so that you will stand with us and follow the example of our Founders with respect to our freedoms, without the need to resort to their method for achieving it.
Requiem to a Constitution
I linked a few articles in the post above, but three sites in particular I want to recommend to you for a serious read, in no particular order:
- Anthony Colleluori’s, “The Land of the Sheep and the Home of the Frightened”
- Mark Bennett’s, “Freedom vs. Safety”
- Andrea Bullock’s, “Would You Trade Liberty for Security?”
Don’t just sit there! Use the comment form below to join the conversation! Let us know you care! Let me know I’m not alone!
I think that one of the principles of the 4th amendment is a matter of trust, as in “trust no one”. What I mean by this is that any kind of search and seizure without and even with probable cause creates a matter of concern in terms of trust. At some point, someone has to be trusted at a level that should not be given to anyone. As an example:
A low profile but serious case is being held at a courthouse with the aforementioned policy. A particular security guard, without anyone’s knowledge, has an interest in further incriminating the defendant. The security guard plants a weapon on the defendant as they enter the courthouse further creating an even worse situation for the defendant.
Part of the protection of the 4th amendment is at least in principal to provide some kind of protection from situations like that. At a deeper level however it is still a matter of trust. Kind of like with Certificate Authorities in the IT world. At some point in the chain of certificate trusts, someone has to be considered completely trustworthy. The only problem with that is that with that kind of power comes a certain amount of corruptibility. Even if the party in question (the one we are supposed to trust 100%) is genuinely trustworthy, that party also becomes a target for those who would wish to abuse the trust earned by that party. And to further that example, as we get more and more companies that want to be CAs, how do we know that all of them are trustworthy? In many ways, our founders were paranoid about any kind of “chain of trust” and were more concerned with “checks and balances”. Someone has to oversee power and authority. Of course then that creates another level of trust and thus another chain of trust.
My bottom line is that there is confusion between “understandable” with “allowable”. While it may be understandable “given these times”, that does not mean it is allowable under the law of the land or the principle and spirit of the law. Trust is not something that can be granted or passed along.
I think that one of the principles of the 4th amendment is a matter of trust, as in “trust no one”. What I mean by this is that any kind of search and seizure without and even with probable cause creates a matter of concern in terms of trust. At some point, someone has to be trusted at a level that should not be given to anyone. As an example:
A low profile but serious case is being held at a courthouse with the aforementioned policy. A particular security guard, without anyone’s knowledge, has an interest in further incriminating the defendant. The security guard plants a weapon on the defendant as they enter the courthouse further creating an even worse situation for the defendant.
Part of the protection of the 4th amendment is at least in principal to provide some kind of protection from situations like that. At a deeper level however it is still a matter of trust. Kind of like with Certificate Authorities in the IT world. At some point in the chain of certificate trusts, someone has to be considered completely trustworthy. The only problem with that is that with that kind of power comes a certain amount of corruptibility. Even if the party in question (the one we are supposed to trust 100%) is genuinely trustworthy, that party also becomes a target for those who would wish to abuse the trust earned by that party. And to further that example, as we get more and more companies that want to be CAs, how do we know that all of them are trustworthy? In many ways, our founders were paranoid about any kind of “chain of trust” and were more concerned with “checks and balances”. Someone has to oversee power and authority. Of course then that creates another level of trust and thus another chain of trust.
My bottom line is that there is confusion between “understandable” with “allowable”. While it may be understandable “given these times”, that does not mean it is allowable under the law of the land or the principle and spirit of the law. Trust is not something that can be granted or passed along.
I think that one of the principles of the 4th amendment is a matter of trust, as in “trust no one”. What I mean by this is that any kind of search and seizure without and even with probable cause creates a matter of concern in terms of trust. At some point, someone has to be trusted at a level that should not be given to anyone. As an example:
A low profile but serious case is being held at a courthouse with the aforementioned policy. A particular security guard, without anyone’s knowledge, has an interest in further incriminating the defendant. The security guard plants a weapon on the defendant as they enter the courthouse further creating an even worse situation for the defendant.
Part of the protection of the 4th amendment is at least in principal to provide some kind of protection from situations like that. At a deeper level however it is still a matter of trust. Kind of like with Certificate Authorities in the IT world. At some point in the chain of certificate trusts, someone has to be considered completely trustworthy. The only problem with that is that with that kind of power comes a certain amount of corruptibility. Even if the party in question (the one we are supposed to trust 100%) is genuinely trustworthy, that party also becomes a target for those who would wish to abuse the trust earned by that party. And to further that example, as we get more and more companies that want to be CAs, how do we know that all of them are trustworthy? In many ways, our founders were paranoid about any kind of “chain of trust” and were more concerned with “checks and balances”. Someone has to oversee power and authority. Of course then that creates another level of trust and thus another chain of trust.
My bottom line is that there is confusion between “understandable” with “allowable”. While it may be understandable “given these times”, that does not mean it is allowable under the law of the land or the principle and spirit of the law. Trust is not something that can be granted or passed along.
I agree however I understood that you only had to take out metal. That made some sense to me. I have never been asked to empty my pockets just to submit metal. Since I don’t like that either I just stick keys and pens in my bag.
I am equally concerned with what you write, but I am also aware that powers that wish to destroy us, will target our buildings of government. Where would you draw the line?
I agree however I understood that you only had to take out metal. That made some sense to me. I have never been asked to empty my pockets just to submit metal. Since I don’t like that either I just stick keys and pens in my bag.
I am equally concerned with what you write, but I am also aware that powers that wish to destroy us, will target our buildings of government. Where would you draw the line?
I agree however I understood that you only had to take out metal. That made some sense to me. I have never been asked to empty my pockets just to submit metal. Since I don’t like that either I just stick keys and pens in my bag.
I am equally concerned with what you write, but I am also aware that powers that wish to destroy us, will target our buildings of government. Where would you draw the line?
Tony, I should maybe clarify something. They’ve never TOUCHED us (although I think one deputy was hoping to get an excuse to cuff me).
But the point is, making someone empty their pockets and letting the deputy pick through things to make sure everything’s “ok,” to get into a courtroom, THAT’S a search.
The thing I don’t get is just that: how come (of all people) defense attorneys don’t understand that when you’re required to empty your pockets and let someone poke through the things you dump into a bowl, that’s a search? Do any of us really think there’s a difference between someone sticking their hands in my pockets and someone making me empty my pockets into a bowl they then paw through to verify that I’m not committing a crime?
After all the rest of the verbiage in the Fourth Amendment, it doesn’t say, “unless there is a possibility that in some alternate universe they actually might be committing, or about to commit, a crime” at the end.
Tony, I should maybe clarify something. They’ve never TOUCHED us (although I think one deputy was hoping to get an excuse to cuff me).
But the point is, making someone empty their pockets and letting the deputy pick through things to make sure everything’s “ok,” to get into a courtroom, THAT’S a search.
The thing I don’t get is just that: how come (of all people) defense attorneys don’t understand that when you’re required to empty your pockets and let someone poke through the things you dump into a bowl, that’s a search? Do any of us really think there’s a difference between someone sticking their hands in my pockets and someone making me empty my pockets into a bowl they then paw through to verify that I’m not committing a crime?
After all the rest of the verbiage in the Fourth Amendment, it doesn’t say, “unless there is a possibility that in some alternate universe they actually might be committing, or about to commit, a crime” at the end.
Tony, I should maybe clarify something. They’ve never TOUCHED us (although I think one deputy was hoping to get an excuse to cuff me).
But the point is, making someone empty their pockets and letting the deputy pick through things to make sure everything’s “ok,” to get into a courtroom, THAT’S a search.
The thing I don’t get is just that: how come (of all people) defense attorneys don’t understand that when you’re required to empty your pockets and let someone poke through the things you dump into a bowl, that’s a search? Do any of us really think there’s a difference between someone sticking their hands in my pockets and someone making me empty my pockets into a bowl they then paw through to verify that I’m not committing a crime?
After all the rest of the verbiage in the Fourth Amendment, it doesn’t say, “unless there is a possibility that in some alternate universe they actually might be committing, or about to commit, a crime” at the end.
Rick, great post. I hope you have grounds to attack this. I absolutely will not allow someone to touch me as I enter the courtroom as a working attorney. I have to be there. I do not mind screening of my bag, but I will not open it. I just leave and tell the court that I would not submit to a search of my person. I have yet to be denied after the clerk or ct. Room Dep calls down. I hadn’t thought about a law suit but it seems like a good idea.
In NY we have an atty ID which allows us to submit to a Police background ck and then we free pass into any state ct house. Feds still require magnometer and scans but I always pass. I wonder what a law suit might do. They have those same fail-safes at SCOTUS.
Rick, great post. I hope you have grounds to attack this. I absolutely will not allow someone to touch me as I enter the courtroom as a working attorney. I have to be there. I do not mind screening of my bag, but I will not open it. I just leave and tell the court that I would not submit to a search of my person. I have yet to be denied after the clerk or ct. Room Dep calls down. I hadn’t thought about a law suit but it seems like a good idea.
In NY we have an atty ID which allows us to submit to a Police background ck and then we free pass into any state ct house. Feds still require magnometer and scans but I always pass. I wonder what a law suit might do. They have those same fail-safes at SCOTUS.