Customs and Border Protection (CBP) employees have been detaining journalists and immigration lawyers at checkpoints in Arizona and Texas and questioning them about their political beliefs. These are nothing more than intimidation tactics by government employees who don’t appear overly concerned that they work for all citizens of the United States, not merely the current presidential administration and its far right supporters.
CBP has long had too broad an authority, and particularly after World War II when Congress passed laws giving the agency the ability to regularly trespass on citizens’ rights under the Fourth Amendment to the Constitution. In 1953, without public review, the Justice Department specified the zone within which CBP could operate fast and loose with the Constitution at 100 air miles of the United States border. That’s 100 miles within the United States, all around the perimeter, an area encompassing nearly two thirds of the populace.
A sign at the January 2018 Womens’ March in Seneca Falls, New York. Photo by Marc Nozell.
It’s incredible these laws and rules have stayed on the books as long as they have and have withstood review by the Supreme Court. The Supreme Court has often interpreted the Constitution with an eye toward sustaining the power of the government over the citizen, however, despite the recent miraculous lapse in its ruling on Timbs v.Indiana, which rescinded civil asset forfeiture, also known as cops’ legalized stealing of citizens’ property. That ruling can best be considered an anomaly, at least from the Court’s five conservative justices, who with an even more recent ruling, in Nielsen v. Preap, are back to their usual shoring up of police state encroachments on the Constitution.
George Carlin performing in 2008 in Santa Rosa, California, just months before he died. “You Have No Rights” is the closing bit, and for the album made from this Home Box Office (HBO) special, It’s Bad for Ya, he was awarded a posthumous Grammy. Warning: foul language.
Supposedly these laws are meant to be enforced against illegal immigrants, who after all are not citizens. In practice, their overly broad authority allows enough room for CBP employees with a political agenda to harass and intimidate anyone they care to, citizens and non-citizens alike. The CBP employees can always claim some legal rationale for their capricious actions, and even after offering the flimsiest excuses, they know legal redress of their abuse of power will take years, if it comes at all. This is what happens when fear guides the writing of laws, giving too much authority to law enforcement agencies, and then a lawless presidential administration grasps the reins of all that power. Meanwhile the nation’s courts have too often upheld police prerogatives over citizens’ rights, eroding the meaning of those rights and mocking their supposed inviolability.
— Vita
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
— Eighth Amendment to the United States Constitution.
In a unanimous decision on February 20, the Supreme Court ruled against the state of Indiana in the case of Timbs v. Indiana, a ruling which effectively ends the notorious practice of civil asset forfeiture. The applicable clause in the Constitution is “nor excessive fines imposed”, and it’s a wonder the states have been able to get away with lawless civil asset forfeiture practices as long as they have, considering the clause seems plainly clear. Apparently the application of that particular right slipped through as long as it has because the country’s founders meant the Constitution to apply only to the federal government. The Supreme Court has been gradually redressing that error ever since, and on February 20 the Court closed the loophole by which police departments across the country had been stealing citizens’ property under state laws allowing the practice.
The altar screen of the Temple Church in London, setting out the text of the Ten Commandments according to the 1549 Book of Common Prayer. Photo by Jheald.
What’s most remarkable about this historic ruling is that it was unanimous. The Supreme Court’s balance is now five to four in favor of conservative justices, and typically when conservatives weigh law enforcement practices against the rights of citizens they have decided for the former. Considering what was at stake in this case, the miraculously unanimous decision speaks to just how corrupt policing for profit had become, and ending it slows the nation’s slide toward becoming a police state. Now police employees nationwide have to heed the Eighth Amendment to the Constitution as well as the Eighth Commandment which, carved in stone in Judeo-Christian culture, reads “Thou shalt not steal”.
They can make more progress by heeding other Commandments, too, such as the Sixth, a paraphrase of which states “Thou shalt not wantonly kill, and then have thy buddies on the force close ranks and cover it up for thee”. That last bit incorporates the Ninth Commandment against bearing false witness, saving time. What does all this have to do with technology? If the police can finally be made to start following rules that have been set in low-tech stone for millennia, perhaps moving along to rules for 21st century high-tech will follow, like whether the controversial practice of going on fishing expeditions to obtain DNA evidence violates citizens’ rights under the Fourth and Fifth Amendments to the Constitution. There are no equivalent strictures in the Ten Commandments. Perhaps the usual advocates on the Court for the police, the conservative justices, can rely on the Constitution alone and apply its plain as day language to the latest technology and once again vote unanimously for citizens’ rights.
— Techly
“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
― from The Federalist Papers, No. 51, by James Madison.
United States Attorney General Jeff Sessions is a fan of civil asset forfeiture, and last year he reinstated the federal partnership with state and local authorities that had been ended by the previous Attorney General, Eric Holder. That partnership allows state and local police to share seized assets with federal authorities if they claim even the flimsiest trespass on federal law by the forfeited assets (in a pretzel-like twist of legal reasoning, it is the assets themselves that are accused, not the person or persons who own them). Engaging the federal government in this way allows state and local police to bypass their civil asset forfeiture laws because they are superseded by federal laws, which are often more favorable to the police. The feds then give the state and local cops a kickback of all or part of the proceeds. This is called “equitable sharing” or, more cutely, “federal adoption”.
Getting pulled over for a minor traffic violation while carrying a large amount of cash can lead to a nightmare civil asset forfeiture scenario for the driver, regardless of the legitimacy of his or her claim to the cash. Only the rich can afford to fight city hall in court. Photo by photoo.uk.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
― The Fifth Amendment to the United States Constitution, with the due process clause.
It’s hard to imagine how the law can be more clear than this: ” . . . nor be deprived of life, liberty, or property, without due process of law . . . ” To be doubly sure, there is another due process clause in the 14th Amendment. Yet here we are, with police abusing the citizenry by stealing from them, sometimes without even a formal charge filed, but only on mere suspicion of a crime having been committed with the asset or assets, and keeping the proceeds in order to augment their budget. There are slight differences in the law from state to state, but in many states the police are allowed to keep seized assets, which also clearly violates the last clause of the Fifth Amendment, the takings clause. It’s impossible to imagine a more blatant case of conflict of interest, adding insult to the injury of the initial seizure.
In a civil asset forfeiture case, the burden of proof is often on the citizen whose assets were seized, not the authorities who took them. In order to retrieve seized assets, a citizen must prove they were not used in the commission of a crime or are a result of criminal activity, and this proof must be forthcoming even when the police have not filed a charge in court. Apparently the only thing to prevent the police from more flagrantly abusing the civil asset forfeiture laws more than they do is the basic decency and good character of the majority of them. But men are not angels, as James Madison wisely observed, and to allow these laws to remain on the books is to invite corruption of the police and further erosion of public trust in government.
Cash found in a freezer at the Washington, D.C. home of Congressman William J. Jefferson of Louisiana. This photo was entered as evidence in July 2009 showing what was seized in August 2005 from the freezer of the home of then Rep. William Jefferson, D-New Orleans. Jurors in the trial of Jefferson, who lost his re-election bid in 2008 while under indictment for bribery, saw photos of the infamous frozen cash. It was wrapped in $10,000 increments and concealed in boxes of Pillsbury pie crust and Boca burgers. Photo by the U.S. Attorney’s Office.
A flagrant case of abuse occurred last year in Jeff Sessions’s home state of Alabama, in the small town of Castleberry in the south central part of the state. To generate revenue for his little town, the mayor hatched a plan for taking advantage of Alabama’s very favorable civil asset forfeiture laws by confiscating cash and property from citizens and visitors alike, but especially out of state visitors, often using entirely invented suspicions. The police chief made no bones about it on public forums, where he joked about how the bogus money grabbing had been a windfall for the town of Castleberry and its nascent police department, now flush with fancy new equipment and patrol cars. Eventually bad publicity caught up with the mayor and police chief of Castleberry, and they were hit with a lawsuit. On a national scale, what happened in Castleberry doesn’t amount to much other than a clear distillation of everything wrong with civil asset forfeiture.
Attorney General Sessions, waving the bloody shirt of the War on Drugs, nevertheless wants to continue civil asset forfeiture and expand it, if he can get away with it. His motivations are unimportant other than how they forecast all the draconian policies he’s likely to see through while he is in charge of the Department of Justice. The important thing is that he has opened up one of the very few issues that attracts a bipartisan consensus in Congress, and that has been for less civil asset forfeiture, not more.
Highway robbery in Stanley Kubrick’s 1975 film Barry Lyndon, with Ryan O’Neal as Redmond Barry. Under America’s civil asset forfeiture laws, the gold guineas in Barry’s purse, and the horse he rode in on, could be forfeited to the robbers, or police. The strange history of this policy of official stealing from the innocent and the guilty alike also matters little, except perhaps to those appellate court judges who fall back on referring to obscure precedents of legal reasoning as convoluted and ultimately irrelevant as the debates of clerics who wondered how many angels might dance on the head of a pin. Congress can take this matter away from both Sessions and the judges by enacting legislation rolling it back. Really it should be swept away entirely, along with the War on Drugs it purportedly assists, as failed policies which have corrupted the police and eroded public trust every bit as much and in the same way as Prohibition did in the early decades of the twentieth century, when civil asset forfeiture first became a major police tactic. It seems we never learn lessons once and for all, but have to forever relearn them.
― Ed.
Once again Arizona has stepped forward with groundbreaking legislation after the State Senate passed on Wednesday, February 22, a bill that would allow the state to charge the organizers of peaceful protests with racketeering if rioting erupts. Among the niceties of the bill are civil asset forfeiture, allowing the state to seize the property of the protest organizers. How do you keep taxes low? By stealing! The bill awaits review in the State House of Representatives. The last time the Arizona legislature made such a big splash in the national news was 2010, when it led the way in the fight against illegal immigration with the “Show me your papers” bill that went all the way to the United States Supreme Court, which struck down three of its four provisions. The back and forth on that bill between Arizona Governor Jan Brewer and President Barack Obama ultimately led to the finger wagging incident (Yay, Jan!) on the tarmac of the Phoenix airport in 2012.
A scene from 1984, starring John Hurt, Richard Burton, and Suzanna Hamilton.Lest we forget Obama and his usefulness, he’s masquerading here as the hated Emmanuel Goldstein on the screen in the auditorium.
This seems as good a time as any to propose an Alternative Constitution. There’s no need to formalize things with a constitutional convention, though if one were really necessary there couldn’t be two better candidates to co-chair the convention than Joe Arpaio, former sheriff of Maricopa County in Arizona, and Yvette Felarca, a leader of the violent “By Any Means Necessary” group in California. Both are tough-talking, no-nonsense types who will make sure things get done at the convention or they’ll bust some heads to know the reasons why. Like Archie and the Meathead on All intheFamily, they are opposite sides of the same coin, though not nearly as many laughs.
All in the Family reminds us that politics colors nearly everything in life, like it or not.
Here are some highlights of the Alternative Constitution:
Amendment 1 – Congress shall make no some law[s] respecting an establishment of [a certain] religion, or prohibiting the free exercise thereof [of some of them]; or abridging the freedom of speech [for some people], or of the [not fake news] press; or the right of the [certain] people peaceably to assemble, and to petition the Government for a redress of grievances [of some people].
Amendment 2 – A well regulated Militia, being necessary to the security of a free State, [T]he right of the people to keep and bear Arms [lots of them; high powered semi-automatics, too], shall not be infringed.
Amendment 4 – The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not [sometimes] [often] be violated, and no Warrants shall issue, but upon probable [almost any] cause, supported by [sometimes secret] Oath or affirmation, and particularly [vaguely] describing the place to be searched, and the persons or things to be seized [and locked away for good!].
Article 1, Section 9, Clause 8 – No Title of Nobility shall be granted by the United States: And no [non orange and non bigly] Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument [except rental income and business favors], Office, or Title, of any kind whatever, from any King, Prince or foreign State.
Cactus with flowers, a true gift of Arizona.
Pretty good, huh? Feel free to alter the text yourself, and to print it out in ALL CAPS, if that suits your political bent. Nothing gets a point across like YELLING, after all. The Dated Constitution, or DC, will be kept around in the National Archives, where tourists can gawk at it and scholars can squabble about the nuances of its language. The late Justice Antonin Scalia, who soon may have a federal courthouse named after him in Charlottesville, Virginia, cleared the way for interpreting our most important national document by underscoring that freewheeling activist judicial decisions are BAD, except when rendering a judgment in a case such as Bush v. Gore, which was GOOD, and not activist at all. (To which Justice Clarence Thomas might have added, were he to speak, “Ditto!”) No worries then with the Alternative Constitution, or AC, which will be the document of record for folks like University of California-Davis campus cop Lieutenant John Pike and the eloquent Zack Fisher of Phoenix, Arizona, both stout defenders of freedom against the despicable encroachments of sniveling protesters and pushy brown immigrants. Thanks to Arizona’s new law, all these paid protesters will soon get their comeuppance when they try their shenanigans in The Grand Canyon State, and Supreme Leader at the helm in Washington is sure to have Arizona’s back, regardless of what activist so-called judges may have to say about it.
― Ed.
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