[The following is my latest column for the CT Law Tribune, to be published this week.]
To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.
Until the Fourth Amendment, which is closely allied with the Fifth, is rewritten, the person and the effects of the individual are beyond the reach of all government agencies until there are reasonable grounds to believe (probable cause) that a criminal venture has been launched or is about to be launched.
Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime.
So concluded Mr. Justice Douglas in his dissent – the lone dissent – to Terry v. Ohio, perhaps with greater prescience than even he would have envisioned. Today, some 46 years later, the fruits of that unwise policy have ripened and come to bear in America, presenting us with a country that seems unrecognizable.
Two weeks ago, in these very pages, I wrote about our supreme court’s decision in State v. Jeremy Kelly, which provided, for the first time, a departure even from the minimal standard of Terry. It allowed police officers to seize citizens without any grounds to believe that the individual was engaged in any wrongdoing.
At the time – and subsequently – I was concerned about the potential for abuse. I was concerned about the ability of police officers to exert swift and severe control over entire neighborhoods and communities. I was concerned that they would be able to repress free speech and free assembly simply by detaining those they didn’t like and arresting the ones who disobeyed. It seemed a bit far-fetched perhaps, but not entirely unrealistic.
Then Ferguson happened. Michael Brown was killed and the officer’s identity hidden. SWAT teams and Mine-Resistant Ambush Protected vehicles started patrolling the streets of Ferguson. People were tear-gassed and arrested. People were beaten and arrested. The press arrived and fared no better. Press members were assaulted and arrested, then released without explanation.
All of this for peacefully protesting the murder of a teenager. All of this because police didn’t like the cut of the jib of the protesters.
The ACLU of Missouri has declared that the First Amendment has effectively been suspended in Ferguson – and it’s not surprising to see why. Police are enforcing arbitrary “First Amendment zones”, a practice clearly held illegal by the recent Supreme Court decision in McCullen v. Coakley, in which Chief Justice Roberts wrote that “[c]onsistent with the traditionally open character of public streets and sidewalks…the government’s ability to restrict speech in such locations is ‘very limited”.
Apparently not limited enough for the police in Ferguson, who have enforced a “no standing and protesting rule“. In other words, if you stand in one place for more than 5 seconds – that’s seconds, not minutes – to protest, you will be arrested. And people have. According to NBC News, 78 people had been arrested and all but 3 of them for the truly Orwellian crime of “Failure to Disperse”. There is a video circulating of a Ferguson police officer threatening an Al-Jazeera reporter and cameraman that he will “bust their heads” if they don’t move along. He doesn’t care that it’s being recorded; all he wants is for them to obey him.
The First Amendment provides for the freedom of speech and the freedom of assembly. Yet we have willingly surrendered both when we endorse a culture of obeisance to police officers, who are increasingly being revealed as petulant children with large, dangerous toys.
When a police officer pens an Op-Ed in the Washington Post, like 17-year veteran Sunil Dutta did on Tuesday and lays it out this simply – “if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you” – you begin to realize that we are to blame. When officers have sniper rifles pointed at the heads of photographers while they document the scene, you know that we are living in a totalitarian nightmare.
How does this happen? How do we get to a point in time where this is acceptable? How is this America an America in which obedience and supplication to authority is cherished and revered above the sovereignty of the individual?
I suspect it is in part because those who have a strong voice in the conversation will never be subject to the abuses of officers like Dutta. After all, it is roughly 2 black men who are shot every week by police officers in this country, not white men. While those who have the luxury of viewing the events in Ferguson from afar – and even the luxury of saying that we should wait for the facts to come out – those who are constantly oppressed by the heavy-handed measures utilized by law enforcement have no voice in this conversation.
They’re too busy getting stopped and frisked for no reason whatsoever and for every Ferguson that erupts, but whose flame flickers out without anything more than the usual supplications, we are to blame.
When the drunk-with-power law enforcement in this country has run out of minorities to push around and lord over, where do you think they’ll turn next?