from the yeah-I’ve-never-seen-those-words-lined-up-like-that-before-either
Wed, Oct 16th 2019 12:17pm — Tim Cushing
You’ve got to be a special kind of law enforcement officer to have two lawsuits filed against you in the same day. Hamilton County Deputy Daniel Wilkey is that kind of special. The Tennessee law enforcement officer managed to violate rights against enough people that two of them retained lawyers. This suggests Deputy Wilkey violates rights on a regular basis, but maybe not egregiously enough to merit a lawsuit in every case.
Both cases here are disturbing. And they’re disturbing in very different ways. I’ve never read a civil rights lawsuit against an officer that included claims of a forcible religious experience, but here we are. (h/t Peter Bonilla)
The first lawsuit [PDF], filed by Shandle Riley, alleges that Deputy Wilkey followed her to a friend’s house from a nearby gas station. Once he had (sort of) pulled her over, things got weird quick.
First, Deputy Wilkey claimed Riley was holding meth. To prove this, he engaged in a full body patdown. Then he ordered her to take off her bra and “shake her bra and shirt” to prove she hadn’t stashed any meth there. Riley asked for a female officer to be present during this “search” but the deputy told her the law doesn’t require female cops to search female citizens.
He then asked if she had anything illegal in her car. She said she had a marijuana roach stashed in a pack of cigarettes. At that point, Deputy Wilkey became verbally abusive. Then he decided to strike a deal with the alleged criminal. We’ll go to the lawsuit for that because… well, it offers the driest recounting of a positively insane situation.
Wilkey then approached Plaintiff and asked her if she was “saved” and believed in Jesus Christ.
Plaintiff stated that she believed in Jesus Christ, but that she was not “saved” by her own choice.
Wilkey then told Plaintiff that God was talking to him during the vehicle search, and Wilkey felt the Lord wanted him to baptize the Plaintiff.
Wilkey further told Plaintiff that he felt “the spirit.”
Um. Do what now?
These are words coming from the mouth of a sworn peace officer. And that’s not the end of it. The option given to Riley was to participate in this highly-unconventional baptism presided over by an officer of the law or get thrown into the gaping maw of the criminal justice system with as much force as Deputy Wilkey could muster. If Riley agreed to a baptism, Wilkey said he would only cite her for marijuana possession and speak to the judge on her behalf. Riley complied with Wilkey’s demands, which included grabbing towels from her friends house and following Wilkey’s cruiser out to a nearby lake.
At the lake, Riley and Wilkey were joined by Deputy Jacob Goforth, who did nothing as Wilkey proceeded with the “baptism.”
Wilkey told Plaintiff that Goforth was present because, in order for a baptism to be valid, a witness must “attest” to the ritual.
Wilkey then stripped nearly naked, with only his boxer shorts on.
Wilkey then gave Plaintiff the option to strip too, but Plaintiff declined.
Wilkey then lead Plaintiff into the near waist deep and frigid water, placed one hand on Plaintiff’s back, and his other hand on Plaintiff’s breasts, and completely submerged Plaintiff under the water.
Wilkey held Plaintiff under water for several moments, then with his hands still positioned on her back and breasts, raised Plaintiff from the cold water.
Plaintiff was shivering uncontrollably, and felt horribly violated.
Unfortunately for Riley, I doubt there’s a case on point that will easily eliminate Wilkey’s qualified immunity defense. But hopefully, the court will recognize this is batshit insane enough it doesn’t need to find a case on point to find Wilkey violated her rights. To top it all off, Riley held up her end of the under-the-color-of-law bargain. Deputy Wilkey did not.
At no time did Wilkey ever [go to] court on Plaintiff’s behalf and speak to the judge.
If that was the only thing Wilkey was being sued about, it would be enough to question his fitness for duty. But as you already know, this isn’t the end of the accusations against the deputy.
The second lawsuit, filed in the same court on the same day, alleges Deputy Wilkey engaged in a suspicionless stop that turned into an impromptu roadside anal cavity search and the beating of a handcuffed man. And oh my god does it start with one of the dumbest things an officer has ever said to defend a pretextual stop. From the lawsuit [PDF]:
Wilkey followed Plaintiffs, and conducted a traffic stop of the Plaintiffs on the false claims of “window tint violation” and that he could smell the odor of marijuana as Wilkey followed the plaintiffs.
This assertion of Wilkey’s exceptional olfactory senses is followed by a parade of brutalities inflicted on the passenger of the pulled-over vehicle at the hands of the deputy. Fortunately for the plaintiffs, this whole interaction was recorded.
Here’s the lawsuit’s description of those events:
Wilkey handcuffed James, and the individual Defendants took James to the front of one of their police vehicles.
Wilkey then began to grab James’ genitals. When James told Wilkey that James had an untreated and large hernia and that Wilkey’s actions were causing James pain, Brewer and Wilkey jerked James’ arms high above his back, and slammed James face-down onto the hot engine hood, causing injury to James.
Wilkey and Brewer then beat James with fists, knees, and feet, slammed James to the ground, and continued their brutalization of James.
Wilkey and Brewer then removed James’ pants and shoes, while still beating James.
Wilkey and Brewer then forced James’ face back onto the hot hood of the same police vehicle and continued to jerk his arms high above his back, and beat James.
While Brewer continued to force James’ face back onto the hot hood of the same police vehicle and jerk his arms high above his back Wilkey donned a set of gloves, pulled down James’ underwear, and conducted an anal cavity search of James.
The lawsuit goes on to note that James suffered numerous injuries including “tearing of his anus” and an aggravation of his existing hernia. The charges brought against James (the deputies discovered drugs in his underwear) were all dropped after the dashcam video was made public.
Deputy Wilkey has been suspended, but it’s the nice kind that means he’ll be paid to do nothing while the Sheriff’s Office decides what to do with him. It would seem obvious he’s too expensive to keep around.
by Guenter Lewy
Guenter Lewy, who for many years taught political science at the University of Massachusetts, has been a contributor to Commentary since 1964. His books include”The Catholic Church & Nazi Germany, Religion & Revolution, America in Vietnam,” and “The Cause that Failed: Communism in American Political Life.”
On September 21, the National Museum of the American Indian will open its doors. In an interview early this year, the museum’s founding director, W. Richard West, declared that the new institution would not shy away from such difficult subjects as the effort to eradicate American Indian culture in the 19th and 20th centuries. It is a safe bet that someone will also, inevitably, raise the issue of genocide.
The story of the encounter between European settlers and America’s native population does not make for pleasant reading. Among early accounts, perhaps the most famous is Helen Hunt Jackson’s A Century of Dishonor (1888), a doleful recitation of forced removals, killings, and callous disregard. Jackson’s book, which clearly captured some essential elements of what happened, also set a pattern of exaggeration and one-sided indictment that has persisted to this day.
Thus, according to Ward Churchill, a professor of ethnic studies at the University of Colorado, the reduction of the North American Indian population from an estimated 12 million in 1500 to barely 237,000 in 1900 represents a”vast genocide . . . , the most sustained on record.” By the end of the 19th century, writes David E. Stannard, a historian at the University of Hawaii, native Americans had undergone the”worst human holocaust the world had ever witnessed, roaring across two continents non-stop for four centuries and consuming the lives of countless tens of millions of people.” In the judgment of Lenore A. Stiffarm and Phil Lane, Jr.,”there can be no more monumental example of sustained genocide—certainly none involving a ‘race’ of people as broad and complex as this—anywhere in the annals of human history.”
The sweeping charge of genocide against the Indians became especially popular during the Vietnam war, when historians opposed to that conflict began drawing parallels between our actions in Southeast Asia and earlier examples of a supposedly ingrained American viciousness toward non-white peoples. The historian Richard Drinnon, referring to the troops under the command of the Indian scout Kit Carson, called them”forerunners of the Burning Fifth Marines” who set fire to Vietnamese villages, while in The American Indian: The First Victim (1972), Jay David urged contemporary readers to recall how America’s civilization had originated in”theft and murder” and”efforts toward . . . genocide.”
Further accusations of genocide marked the run-up to the 1992 quincentenary of the landing of Columbus. The National Council of Churches adopted a resolution branding this event”an invasion” that resulted in the”slavery and genocide of native people.” In a widely read book, The Conquest of Paradise (1990), Kirkpatrick Sale charged the English and their American successors with pursuing a policy of extermination that had continued unabated for four centuries. Later works have followed suit. In the 1999 Encyclopedia of Genocide, edited by the scholar Israel Charny, an article by Ward Churchill argues that extermination was the”express objective” of the U.S. government. To the Cambodia expert Ben Kiernan, similarly, genocide is the”only appropriate way” to describe how white settlers treated the Indians. And so forth.
That American Indians suffered horribly is indisputable. But whether their suffering amounted to a”holocaust,” or to genocide, is another matter.
It is a firmly established fact that a mere 250,000 native Americans were still alive in the territory of the United States at the end of the 19th century. Still in scholarly contention, however, is the number of Indians alive at the time of first contact with Europeans. Some students of the subject speak of an inflated”numbers game”; others charge that the size of the aboriginal population has been deliberately minimized in order to make the decline seem less severe than it was.
The disparity in estimates is enormous. In 1928, the ethnologist James Mooney proposed a total count of 1,152,950 Indians in all tribal areas north of Mexico at the time of the European arrival. By 1987, in American Indian Holocaust and Survival, Russell Thornton was giving a figure of well over 5 million, nearly five times as high as Mooney’s, while Lenore Stiffarm and Phil Lane, Jr. suggested a total of 12 million. That figure rested in turn on the work of the anthropologist Henry Dobyns, who in 1983 had estimated the aboriginal population of North America as a whole at 18 million and of the present territory of the United States at about 10 million.
From one perspective, these differences, however startling, may seem beside the point: there is ample evidence, after all, that the arrival of the white man triggered a drastic reduction in the number of native Americans. Nevertheless, even if the higher figures are credited, they alone do not prove the occurrence of genocide.
To address this issue properly we must begin with the most important reason for the Indians’ catastrophic decline—namely, the spread of highly contagious diseases to which they had no immunity. This phenomenon is known by scholars as a”virgin-soil epidemic”; in North America, it was the norm.
The most lethal of the pathogens introduced by the Europeans was smallpox, which sometimes incapacitated so many adults at once that deaths from hunger and starvation ran as high as deaths from disease; in several cases, entire tribes were rendered extinct. Other killers included measles, influenza, whooping cough, diphtheria, typhus, bubonic plague, cholera, and scarlet fever. Although syphilis was apparently native to parts of the Western hemisphere, it, too, was probably introduced into North America by Europeans.
About all this there is no essential disagreement. The most hideous enemy of native Americans was not the white man and his weaponry, concludes Alfred Crosby,”but the invisible killers which those men brought in their blood and breath.” It is thought that between 75 to 90 percent of all Indian deaths resulted from these killers.
To some, however, this is enough in itself to warrant the term genocide. David Stannard, for instance, states that just as Jews who died of disease and starvation in the ghettos are counted among the victims of the Holocaust, Indians who died of introduced diseases”were as much the victims of the Euro-American genocidal war as were those burned or stabbed or hacked or shot to death, or devoured by hungry dogs.” As an example of actual genocidal conditions, Stannard points to Franciscan missions in California as”furnaces of death.”
But right away we are in highly debatable territory. It is true that the cramped quarters of the missions, with their poor ventilation and bad sanitation, encouraged the spread of disease. But it is demonstrably untrue that, like the Nazis, the missionaries were unconcerned with the welfare of their native converts. No matter how difficult the conditions under which the Indians labored—obligatory work, often inadequate food and medical care, corporal punishment—their experience bore no comparison with the fate of the Jews in the ghettos. The missionaries had a poor understanding of the causes of the diseases that afflicted their charges, and medically there was little they could do for them. By contrast, the Nazis knew exactly what was happening in the ghettos, and quite deliberately deprived the inmates of both food and medicine; unlike in Stannard’s”furnaces of death,” the deaths that occurred there were meant to occur.
The larger picture also does not conform to Stannard’s idea of disease as an expression of”genocidal war.” True, the forced relocations of Indian tribes were often accompanied by great hardship and harsh treatment; the removal of the Cherokee from their homelands to territories west of the Mississippi in 1838 took the lives of thousands and has entered history as the Trail of Tears. But the largest loss of life occurred well before this time, and sometimes after only minimal contact with European traders. True, too, some colonists later welcomed the high mortality among Indians, seeing it as a sign of divine providence; that, however, does not alter the basic fact that Europeans did not come to the New World in order to infect the natives with deadly diseases.
Or did they? Ward Churchill, taking the argument a step further than Stannard, asserts that there was nothing unwitting or unintentional about the way the great bulk of North America’s native population disappeared:”it was precisely malice, not nature, that did the deed.” In brief, the Europeans were engaged in biological warfare.
Unfortunately for this thesis, we know of but a single instance of such warfare, and the documentary evidence is inconclusive. In 1763, a particularly serious uprising threatened the British garrisons west of the Allegheny mountains. Worried about his limited resources, and disgusted by what he saw as the Indians’ treacherous and savage modes of warfare, Sir Jeffrey Amherst, commander-in-chief of British forces in North America, wrote as follows to Colonel Henry Bouquet at Fort Pitt:”You will do well to try to inoculate the Indians [with smallpox] by means of blankets, as well as to try every other method, that can serve to extirpate this execrable race.”
Bouquet clearly approved of Amherst’s suggestion, but whether he himself carried it out is uncertain. On or around June 24, two traders at Fort Pitt did give blankets and a handkerchief from the fort’s quarantined hospital to two visiting Delaware Indians, and one of the traders noted in his journal:”I hope it will have the desired effect.” Smallpox was already present among the tribes of Ohio; at some point after this episode, there was another outbreak in which hundreds died.
A second, even less substantiated instance of alleged biological warfare concerns an incident that occurred on June 20, 1837. On that day, Churchill writes, the U.S. Army began to dispense”‘trade blankets’ to Mandans and other Indians gathered at Fort Clark on the Missouri River in present-day North Dakota.” He continues: Far from being trade goods, the blankets had been taken from a military infirmary in St. Louis quarantined for smallpox, and brought upriver aboard the steamboat St. Peter’s. When the first Indians showed symptoms of the disease on July 14, the post surgeon advised those camped near the post to scatter and seek”sanctuary” in the villages of healthy relatives.
In this way the disease was spread, the Mandans were”virtually exterminated,” and other tribes suffered similarly devastating losses. Citing a figure of”100,000 or more fatalities” caused by the U.S. Army in the 1836-40 smallpox pandemic (elsewhere he speaks of a toll”several times that number”), Churchill refers the reader to Thornton’s American Indian Holocaust and Survival.
Supporting Churchill here are Stiffarm and Lane, who write that”the distribution of smallpox- infected blankets by the U.S. Army to Mandans at Fort Clark . . . was the causative factor in the pandemic of 1836-40.” In evidence, they cite the journal of a contemporary at Fort Clark, Francis A. Chardon.
But Chardon’s journal manifestly does not suggest that the U.S. Army distributed infected blankets, instead blaming the epidemic on the inadvertent spread of disease by a ship’s passenger. And as for the”100,000 fatalities,” not only does Thornton fail to allege such obviously absurd numbers, but he too points to infected passengers on the steamboat St. Peter’s as the cause. Another scholar, drawing on newly discovered source material, has also refuted the idea of a conspiracy to harm the Indians.
Similarly at odds with any such idea is the effort of the United States government at this time to vaccinate the native population. Smallpox vaccination, a procedure developed by the English country doctor Edward Jenner in 1796, was first ordered in 1801 by President Jefferson; the program continued in force for three decades, though its implementation was slowed both by the resistance of the Indians, who suspected a trick, and by lack of interest on the part of some officials. Still, as Thornton writes:”Vaccination of American Indians did eventually succeed in reducing mortality from smallpox.”
To sum up, European settlers came to the New World for a variety of reasons, but the thought of infecting the Indians with deadly pathogens was not one of them. As for the charge that the U.S. government should itself be held responsible for the demographic disaster that overtook the American-Indian population, it is unsupported by evidence or legitimate argument. The United States did not wage biological warfare against the Indians; neither can the large number of deaths as a result of disease be considered the result of a genocidal design.
Still, even if up to 90 percent of the reduction in Indian population was the result of disease, that leaves a sizable death toll caused by mistreatment and violence. Should some or all of these deaths be considered instances of genocide?
We may examine representative incidents by following the geographic route of European settlement, beginning in the New England colonies. There, at first, the Puritans did not regard the Indians they encountered as natural enemies, but rather as potential friends and converts. But their Christianizing efforts showed little success, and their experience with the natives gradually yielded a more hostile view. The Pequot tribe in particular, with its reputation for cruelty and ruthlessness, was feared not only by the colonists but by most other Indians in New England. In the warfare that eventually ensued, caused in part by intertribal rivalries, the Narragansett Indians became actively engaged on the Puritan side.
Hostilities opened in late 1636 after the murder of several colonists. When the Pequots refused to comply with the demands of the Massachusetts Bay Colony for the surrender of the guilty and other forms of indemnification, a punitive expedition was led against them by John Endecott, the first resident governor of the colony; although it ended inconclusively, the Pequots retaliated by attacking any settler they could find. Fort Saybrook on the Connecticut River was besieged, and members of the garrison who ventured outside were ambushed and killed. One captured trader, tied to a stake in sight of the fort, was tortured for three days, expiring after his captors flayed his skin with the help of hot timbers and cut off his fingers and toes. Another prisoner was roasted alive.
The torture of prisoners was indeed routine practice for most Indian tribes, and was deeply ingrained in Indian culture. Valuing bravery above all things, the Indians had little sympathy for those who surrendered or were captured. Prisoners. unable to withstand the rigor of wilderness travel were usually killed on the spot. Among those—Indian or European—taken back to the village, some would be adopted to replace slain warriors, the rest subjected to a ritual of torture designed to humiliate them and exact atonement for the tribe’s losses. Afterward the Indians often consumed the body or parts of it in a ceremonial meal, and proudly displayed scalps and fingers as trophies of victory.
Despite the colonists’ own resort to torture in order to extract confessions, the cruelty of these practices strengthened the belief that the natives were savages who deserved no quarter. This revulsion accounts at least in part for the ferocity of the battle of Fort Mystic in May 1637, when a force commanded by John Mason and assisted by militiamen from Saybrook surprised about half of the Pequot tribe encamped near the Mystic River.
The intention of the colonists had been to kill the warriors”with their Swords,” as Mason put it, to plunder the village, and to capture the women and children. But the plan did not work out. About 150 Pequot warriors had arrived in the fort the night before, and when the surprise attack began they emerged from their tents to fight. Fearing the Indians’ numerical strength, the English attackers set fire to the fortified village and retreated outside the palisades. There they formed a circle and shot down anyone seeking to escape; a second cordon of Narragansett Indians cut down the few who managed to get through the English line. When the battle was over, the Pequots had suffered several hundred dead, perhaps as many as 300 of these being women and children. Twenty Narragansett warriors also fell.
A number of recent historians have charged the Puritans with genocide: that is, with having carried out a premeditated plan to exterminate the Pequots. The evidence belies this. The use of fire as a weapon of war was not unusual for either Europeans or Indians, and every contemporary account stresses that the burning of the fort was an act of self-protection, not part of a pre-planned massacre. In later stages of the Pequot war, moreover, the colonists spared women, children, and the elderly, further contradicting the idea of genocidal intention.
A second famous example from the colonial period is King Philip’s War (1675-76). This conflict, proportionately the costliest of all American wars, took the life of one in every sixteen men of military age in the colonies; large numbers of women and children also perished or were carried into captivity. Fifty-two of New England’s 90 towns were attacked, seventeen were razed to the ground, and 25 were pillaged. Casualties among the Indians were even higher, with many of those captured being executed or sold into slavery abroad.
The war was also merciless, on both sides. At its outset, a colonial council in Boston had declared”that none be Killed or Wounded that are Willing to surrender themselves into Custody.” But these rules were soon abandoned on the grounds that the Indians themselves, failing to adhere either to the laws of war or to the law of nature, would”skulk” behind trees, rocks, and bushes rather than appear openly to do” civilized” battle. Similarly creating a desire for retribution were the cruelties perpetrated by Indians when ambushing English troops or overrunning strongholds housing women and children.
Before long, both colonists and Indians were dismembering corpses and displaying body parts and heads on poles. (Nevertheless, Indians could not be killed with impunity. In the summer of 1676, four men were tried in Boston for the brutal murder of three squaws and three Indian children; all were found guilty and two were executed.)
The hatred kindled by King Philip’s War became even more pronounced in 1689 when strong Indian tribes allied themselves with the French against the British. In 1694, the General Court of Massachusetts ordered all friendly Indians confined to a small area. A bounty was then offered for the killing or capture of hostile Indians, and scalps were accepted as proof of a kill. In 1704, this was amended in the direction of”Christian practice” by means of a scale of rewards graduated by age and sex; bounty was proscribed in the case of children under the age of ten, subsequently raised to twelve (sixteen in Connecticut, fifteen in New Jersey). Here, too, genocidal intent was far from evident; the practices were justified on grounds of self-preservation and revenge, and in reprisal for the extensive scalping carried out by Indians.
We turn now to the American frontier. In Pennsylvania, where the white population had doubled between 1740 and 1760, the pressure on Indian lands increased formidably; in 1754, encouraged by French agents, Indian warriors struck, starting a long and bloody conflict known as the French and Indian War or the Seven Years’ War. By 1763, according to one estimate, about 2,000 whites had been killed or vanished into captivity. Stories of real, exaggerated, and imaginary atrocities spread by word of mouth, in narratives of imprisonment, and by means of provincial newspapers. Some British officers gave orders that captured Indians be given no quarter, and even after the end of formal hostilities, feelings continued to run so high that murderers of Indians, like the infamous Paxton Boys, were applauded rather than arrested.
As the United States expanded westward, such conflicts multiplied. So far had things progressed by 1784 that, according to one British traveler,”white Americans have the most rancorous antipathy to the whole race of Indians; and nothing is more common than to hear them talk of extirpating them totally from the face of the earth, men, women, and children.”
Settlers on the expanding frontier treated the Indians with contempt, often robbing and killing them at will. In 1782, a militia pursuing an Indian war party that had slain a woman and a child massacred more than 90 peaceful Moravian Delawares. Although federal and state officials tried to bring such killers to justice, their efforts, writes the historian Francis Prucha,”were no match for the singular Indian-hating mentality of the frontiersmen, upon whom depended conviction in the local courts.”
But that, too, is only part of the story. The view that the Indian problem could be solved by force alone came under vigorous challenge from a number of federal commissioners who from 1832 on headed the Bureau of Indian Affairs and supervised the network of agents and subagents in the field. Many Americans on the eastern seaboard, too, openly criticized the rough ways of the frontier. Pity for the vanishing Indian, together with a sense of remorse, led to a revival of the 18th-century concept of the noble savage. America’s native inhabitants were romanticized in historiography, art, and literature, notably by James Fenimore Cooper in his Leatherstocking Tales and Henry Wadsworth Longfellow in his long poem, The Song of Hiawatha.
On the western frontier itself, such views were of course dismissed as rank sentimentality; the perceived nobility of the savages, observed cynics, was directly proportional to one’s geographic distance from them. Instead, settlers vigorously complained that the regular army was failing to meet the Indian threat more aggressively. A large-scale uprising of the Sioux in Minnesota in 1862, in which Indian war parties killed, raped, and pillaged all over the countryside, left in its wake a climate of fear and anger that spread over the entire West.
Colorado was especially tense. Cheyenne and Arapahoe Indians, who had legitimate grievances against the encroaching white settlers, also fought for the sheer joy of combat, the desire for booty, and the prestige that accrued from success. The overland route to the East was particularly vulnerable: at one point in 1864, Denver was cut off from all supplies, and there were several butcheries of entire families at outlying ranches. In one gruesome case, all of the victims were scalped, the throats of the two children were cut, and the mother’s body was ripped open and her entrails pulled over her face.
Writing in September 1864, the Reverend William Crawford reported on the attitude of the white population of Colorado: “There is but one sentiment in regard to the final disposition which shall be made of the Indians: ‘Let them be exterminated—men, women, and children together.’” Of course, he added,”I do not myself share in such views.” The Rocky Mountain News, which at first had distinguished between friendly and hostile Indians, likewise began to advocate extermination of this “dissolute, vagabondish, brutal, and ungrateful race.” With the regular army off fighting the Civil War in the South, the western settlers depended for their protection on volunteer regiments, many lamentably deficient in discipline. It was a local force of such volunteers that committed the massacre of Sand Creek, Colorado on November 29, 1864. Formed in August, the regiment was made up of miners down on their luck, cowpokes tired of ranching, and others itching for battle. Its commander, the Reverend John Milton Chivington, a politician and ardent Indian-hater, had urged war without mercy, even against children.”Nits make lice,” he was fond of saying. The ensuing orgy of violence in the course of a surprise attack on a large Indian encampment left between 70 and 250 Indians dead, the majority women and children. The regiment suffered eight killed and 40 wounded.
News of the Sand Creek massacre sparked an outcry in the East and led to several congressional inquiries. Although some of the investigators appear to have been biased against Chivington, there was no disputing that he had issued orders not to give quarter, or that his soldiers had engaged in massive scalping and other mutilations.
The sorry tale continues in California. The area that in 1850 became admitted to the Union as the 31st state had once held an Indian population estimated at anywhere between 150,000 and 250,000. By the end of the 19th century, the number had dropped to 15,000. As elsewhere, disease was the single most important factor, although the state also witnessed an unusually large number of deliberate killings.
The discovery of gold in 1848 brought about a fundamental change in Indian-white relations. Whereas formerly Mexican ranchers had both exploited the Indians and provided them with a minimum of protection, the new immigrants, mostly young single males, exhibited animosity from the start, trespassing on Indian lands and often freely killing any who were in their way. An American officer wrote to his sister in 1860:”There never was a viler sort of men in the world than is congregated about these mines.”
What was true of miners was often true as well of newly arrived farmers. By the early 1850’s, whites in California outnumbered Indians by about two to one, and the lot of the natives, gradually forced into the least fertile parts of the territory, began to deteriorate rapidly. Many succumbed to starvation; others, desperate for food, went on the attack, stealing and killing livestock. Indian women who prostituted themselves to feed their families contributed to the demographic decline by removing themselves from the reproductive cycle. As a solution to the growing problem, the federal government sought to confine the Indians to reservations, but this was opposed both by the Indians themselves and by white ranchers fearing the loss of labor. Meanwhile, clashes multiplied.
One of the most violent, between white settlers and Yuki Indians in the Round Valley of Mendocino County, lasted for several years and was waged with great ferocity. Although Governor John B. Weller cautioned against an indiscriminate campaign—”[Y]our operations against the Indians,” he wrote to the commander of a volunteer force in 1859,”must be confined strictly to those who are known to have been engaged in killing the stock and destroying the property of our citizens . . . and the women and children under all circumstances must be spared”—his words had little effect. By 1864 the number of Yukis had declined from about 5,000 to 300.
The Humboldt Bay region, just northwest of the Round Valley, was the scene of still more collisions. Here too Indians stole and killed cattle, and militia companies retaliated. A secret league, formed in the town of Eureka, perpetrated a particularly hideous massacre in February 1860, surprising Indians sleeping in their houses and killing about sixty, mostly by hatchet. During the same morning hours, whites attacked two other Indian rancherias, with the same deadly results. In all, nearly 300 Indians were killed on one day, at least half of them women and children.
Once again there was outrage and remorse.”The white settlers,” wrote a historian only 20 years later,”had received great provocation. . . . But nothing they had suffered, no depredations the savages had committed, could justify the cruel slaughter of innocent women and children.” This had also been the opinion of a majority of the people of Eureka, where a grand jury condemned the massacre, while in cities like San Francisco all such killings repeatedly drew strong criticism. But atrocities continued: by the 1870’s, as one historian has summarized the situation in California,”only remnants of the aboriginal populations were still alive, and those who had survived the maelstrom of the preceding quarter-century were dislocated, demoralized, and impoverished.”
Lastly we come to the wars on the Great Plains. Following the end of the Civil War, large waves of white migrants, arriving simultaneously from East and West, squeezed the Plains Indians between them. In response, the Indians attacked vulnerable white outposts; their”acts of devilish cruelty,” reported one officer on the scene, had”no parallel in savage warfare.” The trails west were in similar peril: in December 1866, an army detachment of 80 men was lured into an ambush on the Bozeman Trail, and all of the soldiers were killed.
To force the natives into submission, Generals Sherman and Sheridan, who for two decades after the Civil War commanded the Indian-fighting army units on the Plains, applied the same strategy they had used so successfully in their marches across Georgia and in the Shenandoah Valley. Unable to defeat the Indians on the open prairie, they pursued them to their winter camps, where numbing cold and heavy snows limited their mobility. There they destroyed the lodges and stores of food, a tactic that inevitably resulted in the deaths of women and children.
Genocide? These actions were almost certainly in conformity with the laws of war accepted at the time. The principles of limited war and of noncombatant immunity had been codified in Francis Lieber’s General Order No. 100, issued for the Union Army on April 24, 1863. But the villages of warring Indians who refused to surrender were considered legitimate military objectives. In any event, there was never any order to exterminate the Plains Indians, despite heated pronouncements on the subject by the outraged Sherman and despite Sheridan’s famous quip that”the only good Indians I ever saw were dead.” Although Sheridan did not mean that all Indians should be shot on sight, but rather that none of the warring Indians on the Plains could be trusted, his words, as the historian James Axtell rightly suggests, did”more to harm straight thinking about Indian-white relations than any number of Sand Creeks or Wounded Knees.”
As for that last-named encounter, it took place on December 29, 1890 on the Pine Ridge Reservation in South Dakota. By this time, the 7th Regiment of U.S. Cavalry had compiled a reputation for aggressiveness, particularly in the wake of its surprise assault in 1868 on a Cheyenne village on the Washita river in Kansas, where about 100 Indians were killed by General George Custer’s men.
Still, the battle of Washita, although one-sided, had not been a massacre: wounded warriors were given first aid, and 53 women and children who had hidden in their lodges survived the assault and were taken prisoner. Nor were the Cheyennes unarmed innocents; as their chief Black Kettle acknowledged, they had been conducting regular raids into Kansas that he was powerless to stop.
The encounter at Wounded Knee, 22 years later, must be seen in the context of the Ghost Dance religion, a messianic movement that since 1889 had caused great excitement among Indians in the area and that was interpreted by whites as a general call to war. While an encampment of Sioux was being searched for arms, a few young men created an incident; the soldiers, furious at what they considered an act of Indian treachery, fought back furiously as guns surrounding the encampment opened fire with deadly effect. The Army’s casualties were 25 killed and 39 wounded, mostly as a result of friendly fire. More than 300 Indians died.
Wounded Knee has been called”perhaps the best-known genocide of North American Indians.” But, as Robert Utley has concluded in a careful analysis, it is better described as”a regrettable, tragic accident of war,” a bloodbath that neither side intended. In a situation where women and children were mixed with men, it was inevitable that some of the former would be killed. But several groups of women and children were in fact allowed out of the encampment, and wounded Indian warriors, too, were spared and taken to a hospital. There may have been a few deliberate killings of noncombatants, but on the whole, as a court of inquiry ordered by President Harrison established, the officers and soldiers of the unit made supreme efforts to avoid killing women and children.
On January 15, 1891, the last Sioux warriors surrendered. Apart from isolated clashes, America’s Indian wars had ended.
The Genocide Convention was approved by the General Assembly of the United Nations on December 9, 1948 and came into force on January 12, 1951; after a long delay, it was ratified by the United States in 1986. Since genocide is now a technical term in international criminal law, the definition established by the convention has assumed prima-facie authority, and it is with this definition that we should begin in assessing the applicability of the concept of genocide to the events we have been considering.
According to Article II of the convention, the crime of genocide consists of a series of acts” committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such” (emphases added). Practically all legal scholars accept the centrality of this clause. During the deliberations over the convention, some argued for a clear specification of the reasons, or motives, for the destruction of a group. In the end, instead of a list of such motives, the issue was resolved by adding the words”as such”—i.e., the motive or reason for the destruction must be the ending of the group as a national, ethnic, racial, or religious entity. Evidence of such a motive, as one legal scholar put it,”will constitute an integral part of the proof of a genocidal plan, and therefore of genocidal intent.”
The crucial role played by intentionality in the Genocide Convention means that under its terms the huge number of Indian deaths from epidemics cannot be considered genocide. The lethal diseases were introduced inadvertently, and the Europeans cannot be blamed for their ignorance of what medical science would discover only centuries later. Similarly, military engagements that led to the death of noncombatants, like the battle of the Washita, cannot be seen as genocidal acts, for the loss of innocent life was not intended and the soldiers did not aim at the destruction of the Indians as a defined group. By contrast, some of the massacres in California, where both the perpetrators and their supporters openly acknowledged a desire to destroy the Indians as an ethnic entity, might indeed be regarded under the terms of the convention as exhibiting genocidal intent.
Even as it outlaws the destruction of a group”in whole or in part,” the convention does not address the question of what percentage of a group must be affected in order to qualify as genocide. As a benchmark, the prosecutor of the International Criminal Tribunal for the Former Yugoslavia has suggested”a reasonably significant number, relative to the total of the group as a whole,” adding that the actual or attempted destruction should also relate to”the factual opportunity of the accused to destroy a group in a specific geographic area within the sphere of his control, and not in relation to the entire population of the group in a wider geographic sense.” If this principle were adopted, an atrocity like the Sand Creek massacre, limited to one group in a specific single locality, might also be considered an act of genocide.
Of course, it is far from easy to apply a legal concept developed in the middle of the 20th century to events taking place many decades if not hundreds of years earlier. Our knowledge of many of these occurrences is incomplete. Moreover, the malefactors, long since dead, cannot be tried in a court of law, where it would be possible to establish crucial factual details and to clarify relevant legal principles.
Applying today’s standards to events of the past raises still other questions, legal and moral alike. While history has no statute of limitations, our legal system rejects the idea of retroactivity (ex post facto laws). Morally, even if we accept the idea of universal principles transcending particular cultures and periods, we must exercise caution in condemning, say, the conduct of war during America’s colonial period, which for the most part conformed to thenprevailing notions of right and wrong. To understand all is hardly to forgive all, but historical judgment, as the scholar Gordon Leff has correctly stressed,”must always be contextual: it is no more reprehensible for an age to have lacked our values than to have lacked forks.”
The real task, then, is to ascertain the context of a specific situation and the options it presented. Given circumstances, and the moral standards of the day, did the people on whose conduct we are sitting in judgment have a choice to act differently? Such an approach would lead us to greater indulgence toward the Puritans of New England, who fought for their survival, than toward the miners and volunteer militias of California who often slaughtered Indian men, women, and children for no other reason than to satisfy their appetite for gold and land. The former, in addition, battled their Indian adversaries in an age that had little concern for humane standards of warfare, while the latter committed their atrocities in the face of vehement denunciation not only by self-styled humanitarians in the faraway East but by many of their fellow citizens in California.
Finally, even if some episodes can be considered genocidal—that is, tending toward genocide—they certainly do not justify condemning an entire society. Guilt is personal, and for good reason the Genocide Convention provides that only”persons” can be charged with the crime, probably even ruling out legal proceedings against governments. No less significant is that a massacre like Sand Creek was undertaken by a local volunteer militia and was not the expression of official U.S. policy. No regular U.S. Army unit was ever implicated in a similar atrocity. In the majority of actions, concludes Robert Utley,”the Army shot noncombatants incidentally and accidentally, not purposefully.” As for the larger society, even if some elements in the white population, mainly in the West, at times advocated extermination, no official of the U.S. government ever seriously proposed it. Genocide was never American policy, nor was it the result of policy.
The violent collision between whites and America’s native population was probably unavoidable. Between 1600 and 1850, a dramatic surge in population led to massive waves of emigration from Europe, and many of the millions who arrived in the New World gradually pushed westward into America’s seemingly unlimited space. No doubt, the 19th-century idea of America’s”manifest destiny” was in part a rationalization for acquisitiveness, but the resulting dispossession of the Indians was as unstoppable as other great population movements of the past. The U.S. government could not have prevented the westward movement even if it had wanted to.
In the end, the sad fate of America’s Indians represents not a crime but a tragedy, involving an irreconcilable collision of cultures and values. Despite the efforts of well-meaning people in both camps, there existed no good solution to this clash. The Indians were not prepared to give up the nomadic life of the hunter for the sedentary life of the farmer. The new Americans, convinced of their cultural and racial superiority, were unwilling to grant the original inhabitants of the continent the vast preserve of land required by the Indians’ way of life. The consequence was a conflict in which there were few heroes, but which was far from a simple tale of hapless victims and merciless aggressors. To fling the charge of genocide at an entire society serves neither the interests of the Indians nor those of history.
Despite widely clearing both the state’s Senate and Assembly, California Governor Jerry Brown shot down a bill on Sunday that would have imposed restrictions on when law enforcement agencies can use drones for surveillance.
Brown, a Democrat, said in a statement over the weekend that he was vetoing the drone accountability act that, had it been signed into law, would require police agencies to obtain a warrant before using an unmanned vehicle, or drone, for aerial surveillance.
“There are undoubtedly circumstances where a warrant is appropriate. The bill’s exceptions, however, appear to be too narrow and could impose requirements beyond what is required by either the Fourth Amendment or the privacy provisions in the California Constitution,” Brown said on Sunday.
One of the bill’s authors, Republican Assemblyman Jeff Gorell, said in a tweet on Sunday that “The era of govt. surveillance continues” after the governor’s veto was announced.
Posted Jun 24, 2014 8:40 AM CDT
By Erwin Chemerinsky
In a series of cases this term, the U.S. Supreme Court has made it much more difficult for plaintiffs to recover for civil rights violations. These decisions continue a pattern in recent years of the Supreme Court significantly expanding the immunity accorded to government officials sued for violating the Constitution.
Suing individual government officers is often the only way that an injured person can recover for constitutional violations. Yet suits against government entities are often difficult, if not impossible, to win. Both the federal and state governments are protected by sovereign immunity, which greatly limits suits against them for damages. Local governments may be held liable for civil rights violations only if there is a municipal policy or custom that led to the injury.
State and local government officials may be sued for constitutional violations pursuant to 42 U.S. Code Sec. 1983, and federal officers may be sued pursuant to the Supreme Court’s 1971 decision, Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics. The Supreme Court, however, has said that all government officials sued for money damages may raise immunity as a defense. Some government officers have absolute immunity to suits for money damages: among them are judges performing judicial tasks, prosecutors performing prosecutorial tasks, legislators performing legislative tasks, police officers testifying as witness, and the president for acts taken in office.
All other government officers have qualified immunity. In Harlow v. Fitzgerald, the Supreme Court held in 1982 that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
In the 30 years since Harlow, courts have struggled with how to determine if there is a clearly established law that the “reasonable person would have known.” Must there be a case on point to say that there is such clearly established law?
In Hope v. Pelzer, the court in 2002 seemingly resolved this and held that there need not be a prior decision on point for the plaintiff to show the existence of clearly established law. Rather, officers may be held liable so long as they had fair warning that their conduct was impermissible.
The case involved a prisoner who was tied to a hitching post and left in the hot sun. The federal court of appeals found that this was cruel and unusual punishment, but that the officers were protected by qualified immunity because there was no case on point holding that such use of the hitching post violated the Constitution. The Supreme Court reversed and said that a case on point is sufficient to show clearly established law, but it is not necessary.
In the decade since Hope v. Pelzer, including three cases this term, the Supreme Court repeatedly has found qualified immunity based on the absence of a case on point. The court has not overruled Hope v. Pelzer or even distinguished it; the court has simply ignored it. In the process, the court has made it much harder for plaintiffs to overcome qualified immunity and hold government officers liable for constitutional violations.
In Lane v. Franks, issued June 19, the court unanimously held that a government employee’s First Amendment rights were violated when he was fired for truthful testimony he gave pursuant to a subpoena. This result seems so obvious: of course it is wrong to fire a person for testifying honestly in a criminal trial, especially when the individual had no choice but to testify because of a subpoena.
Nonetheless, the court found that the defendant responsible for the firing was protected from liability by qualified immunity. Justice Sonia Sotomayor, writing for the court, said that “[t]he relevant question for qualified immunity purposes is this: Could Franks reasonably have believed, at the time he fired Lane, that a government employer could fire an employee on account of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities?” The court reviewed precedents, especially from the 11th U.S. Circuit Court of Appeals, which earlier ruled on the case, and found that none had clearly held that this violates the First Amendment. But Hope v. Pelzer said that a case on point is not necessary: Shouldn’t every government officer know that it is wrong to fire a person for truthfully testifying in court?
In Plumhoff v. Rickard, decided on May 27, the court again found that government officials were protected by qualified immunity. Police officers pulled over a white Honda Accord because the car had only one operating headlight. Donald Rickard was the driver of the Accord, and Kelly Allen was in the passenger seat. The officer asked Rickard if he had been drinking, and Rickard responded that he had not. Because Rickard failed to produce his driver’s license upon request and appeared nervous, the officer asked Rickard to step out of the car. Rather than comply with the officer’s request, Rickard sped away.
A high-speed chase then occurred that lasted five minutes and reached speeds greater than 100 mph. At one point, the officers appeared to have Rickard’s car pinned. But when the car pulled away, officers fired three shots into the car. As the car attempted to speed away, another 12 shots were fired by the police. Both the driver and the passenger were killed. The 6th U.S. Circuit Court of Appeals concluded that the police used excess force and violated the Fourth Amendment.
The Supreme Court unanimously reversed, ruling in favor of the police. Justice Samuel A. Alito Jr. wrote for the court and held that there was no violation of the Fourth Amendment. The court said that the driver’s conduct posed a “grave public safety risk” and that the police were justified in shooting at the car to stop it. The court said “it stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” Moreover, the court said that even if there were a Fourth Amendment violation, the officers were protected by qualified immunity, in that the law had not clearly established that the conduct violated the Fourth Amendment.
This is a disturbing holding. The Supreme Court now has said that whenever there is a high-speed chase that the officers perceive could injure others–and that would seem to be true of virtually all high speed chases–the police can shoot at the vehicle and keep shooting until it stops. The car was stopped for having only one working headlight. If the driver refused to stop, why not just let the car go and then track the driver down later? Why should death be the punishment for making the extremely poor choice to begin a high-speed chase?
Finally, in Wood v. Moss, also decided on May 27, the court found that Secret Service agents were protected by qualified immunity when they engaged in viewpoint discrimination with regard to speakers. President George W. Bush was in Oregon and the Secret Service agents allowed supporters of President Bush to be closer and pushed the opponents further away. The law is clear that the government cannot discriminate among speakers based on their views unless strict scrutiny is met.
Nonetheless, the court, in a unanimous decision with the majority opinion written by Justice Ruth Bader Ginsburg, found that the Secret Service agents were protected by qualified immunity because there were no cases on point concerning when Secret Service agents may violate the First Amendment. But why do there need to be specific cases since the law is clearly established that viewpoint discrimination violates the First Amendment?
All of these cases were unanimous. All found qualified immunity because of the absence of a case on point. Together they show a court that is very protective of government officials who are sued and that has made it very difficult for victims of constitutional violations to recover.
Erwin Chemerinsky, Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.
“[I]f 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. The decision to enter it should be made only after a full debate by the people of this country.”-–U.S. Supreme Court Justice William O. Douglas
The U.S. Supreme Court was intended to be an institution established to intervene and protect the people against the government and its agents when they overstep their bounds. Yet as I point out in my book A Government of Wolves: The Emerging American Police State, Americans can no longer rely on the courts to mete out justice. In the police state being erected around us, the police and other government agents can probe, poke, pinch, taser, search, seize, strip and generally manhandle anyone they see fit in almost any circumstance, all with the general blessing of the courts.
Whether it’s police officers breaking through people’s front doors and shooting them dead in their homes or strip searching innocent motorists on the side of the road, these instances of abuse are continually validated by a judicial system that kowtows to virtually every police demand, no matter how unjust, no matter how in opposition to the Constitution.
These are the hallmarks of the emerging American police state: where police officers, no longer mere servants of the people entrusted with keeping the peace, are part of an elite ruling class dependent on keeping the masses corralled, under control, and treated like suspects and enemies rather than citizens.
A review of the Supreme Court’s rulings over the past 10 years, including some critical ones this term, reveals a startling and steady trend towards pro-police state rulings by an institution concerned more with establishing order and protecting government agents than with upholding the rights enshrined in the Constitution.
Police officers can use lethal force in car chases without fear of lawsuits. In Plumhoff v. Rickard (2014), the Court declared that police officers who used deadly force to terminate a car chase were immune from a lawsuit. The officers were accused of needlessly resorting to deadly force by shooting multiple times at a man and his passenger in a stopped car, killing both individuals.
Police officers can stop cars based only on “anonymous” tips. In a 5-4 ruling inNavarette v. California (2014), the Court declared that police officers can, under the guise of “reasonable suspicion,” stop cars and question drivers based solely on anonymous tips, no matter how dubious, and whether or not they themselves witnessed any troubling behavior. This ruling came on the heels of a ruling by the Tenth Circuit Court of Appeals in U.S. v. Westhoven that driving too carefully, with a rigid posture, taking a scenic route, and having acne are sufficient reasons for a police officer to suspect you of doing something illegal, detain you, search your car, and arrest you–even if you’ve done nothing illegal to warrant the stop in the first place.
Secret Service agents are not accountable for their actions, as long as they’re done in the name of security. In Wood v. Moss (2014), the Court granted “qualified immunity” to Secret Service officials who relocated anti-Bush protesters, despite concerns raised that the protesters’ First Amendment right to freely speak, assemble, and petition their government leaders had been violated. These decisions, part of a recent trend toward granting government officials “qualified immunity”–they are not accountable for their actions–in lawsuits over alleged constitutional violations, merely incentivize government officials to violate constitutional rights without fear of repercussion.
Citizens only have a right to remain silent if they assert it. The Supreme Court ruled inSalinas v. Texas (2013) that persons who are not under arrest must specifically invoke their Fifth Amendment privilege against self-incrimination in order to avoid having their refusal to answer police questions used against them in a subsequent criminal trial. What this ruling says, essentially, is that citizens had better know what their rights are and understand when those rights are being violated, because the government is no longer going to be held responsible for informing you of those rights before violating them.
Police have free reign to use drug-sniffing dogs as “search warrants on leashes,” justifying any and all police searches of vehicles stopped on the roadside. In Florida v. Harris (2013), a unanimous Court determined that police officers may use highly unreliable drug-sniffing dogs to conduct warrantless searches of cars during routine traffic stops. In doing so, the justices sided with police by claiming that all that the police need to do to prove probable cause for a search is simply assert that a drug detection dog has received proper training. The ruling turns man’s best friend into an extension of the police state.
Police can forcibly take your DNA, whether or not you’ve been convicted of a crime. InMaryland v. King (2013), a divided Court determined that a person arrested for a crime who is supposed to be presumed innocent until proven guilty must submit to forcible extraction of their DNA. Once again the Court sided with the guardians of the police state over the defenders of individual liberty in determining that DNA samples may be extracted from people arrested for “serious offenses.” While the Court claims to have made its decision based upon concerns of properly identifying criminal suspects upon arrest, what they actually did is open the door for a nationwide dragnet of suspects targeted via DNA sampling.
Police can stop, search, question and profile citizens and non-citizens alike. The Supreme Court declared in Arizona v. United States (2012) that Arizona police officers have broad authority to stop, search and question individuals–citizen and non-citizen alike. While the law prohibits officers from considering race, color, or national origin, it amounts to little more than a perfunctory nod to discrimination laws on the books, while paving the way for outright racial profiling and destroying the Fourth Amendment.
Police can subject Americans to virtual strip searches, no matter the “offense.” A divided Supreme Court actually prioritized making life easier for overworked jail officials over the basic right of Americans to be free from debasing strip searches. In its 5-4 ruling in Florence v. Burlington (2012), the Court declared that any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (i.e., they can be guilty of nothing more than a minor traffic offense), can be subjected to a virtual strip search by police or jail officials, which involves exposing the genitals and the buttocks. This “license to probe” is now being extended to roadside stops, as police officers throughout the country have begun performing roadside strip searches–some involving anal and vaginal probes–without any evidence of wrongdoing and without a warrant.
Immunity protections for Secret Service agents trump the free speech rights of Americans. The court issued a unanimous decision in Reichle v. Howards (2012), siding with two Secret Service agents who arrested a Colorado man simply for daring to voice critical remarks to Vice President Cheney. However, contrast the Court’s affirmation of the “free speech” rights of corporations and wealthy donors in McCutcheon v. FEC (2014), which does away with established limits on the number of candidates an entity can support with campaign contributions, and Citizens United v. FEC (2010) with its tendency to deny those same rights to average Americans when government interests abound, and you’ll find a noticeable disparity.
Police can break into homes without a warrant, even if it’s the wrong home. In an 8-1 ruling in Kentucky v. King (2011), the Supreme Court placed their trust in the discretion of police officers, rather than in the dictates of the Constitution, when they gave police greater leeway to break into homes or apartments without a warrant. Despite the fact that the police in question ended up pursuing the wrong suspect, invaded the wrong apartment and violated just about every tenet that stands between us and a police state, the Court sanctioned the warrantless raid, leaving Americans with little real protection in the face of all manner of abuses by police.
Police can interrogate minors without their parents present. In a devastating ruling that could very well do away with what little Fourth Amendment protections remain to public school students and their families–the Court threw out a lower court ruling in Camreta v. Greene (2011), which required government authorities to secure a warrant, a court order or parental consent before interrogating students at school. The ramifications are far-reaching, rendering public school students as wards of the state. Once again, the courts sided with law enforcement against the rights of the people.
It’s a crime to not identify yourself when a policeman asks your name. In Hiibel v. Sixth Judicial District Court of the State of Nevada (2004), a majority of the high court agreed that refusing to answer when a policeman asks “What’s your name?” can rightfully be considered a crime under Nevada’s “stop and identify” statute. No longer will Americans, even those not suspected of or charged with any crime, have the right to remain silent when stopped and questioned by a police officer.
The cases the Supreme Court refuses to hear, allowing lower court judgments to stand, are almost as critical as the ones they rule on. Some of these cases, turned away in recent years alone, have delivered devastating blows to the rights enshrined in the Constitution.
Legally owning a firearm is enough to justify a no-knock raid by police. Justices refused to hear Quinn v. Texas (2014) the case of a Texas man who was shot by police through his closed bedroom door and whose home was subject to a no-knock, SWAT-team style forceful entry and raid based solely on the suspicion that there were legally-owned firearms in his household.
The military can arrest and detain American citizens. In refusing to hear Hedges v. Obama (2014), a legal challenge to the indefinite detention provision of the National Defense Authorization Act of 2012 (NDAA), the Supreme Court affirmed that the President and the U.S. military can arrest and indefinitely detain individuals, including American citizens. In so doing, the high court also passed up an opportunity to overturn its 1944 Korematsu v. United States ruling allowing for the internment of Japanese-Americans in concentration camps.
Students can be subjected to random lockdowns and mass searches at school. The Court refused to hear Burlison v. Springfield Public Schools (2013), a case involving students at a Missouri public school who were subjected to random lockdowns, mass searches and drug-sniffing dogs by police. In so doing, the Court let stand an appeals court ruling that the searches and lockdowns were reasonable in order to maintain the safety and security of students at the school.
Police officers who don’t know their actions violate the law aren’t guilty of breaking the law. The Supreme Court let stand a Ninth Circuit Court of Appeals decision in Brooks v. City of Seattle (2012) in which police officers who clearly used excessive force when they repeatedly tasered a pregnant woman during a routine traffic stop were granted immunity from prosecution. The Ninth Circuit actually rationalized its ruling by claiming that the officers couldn’t have known beyond a reasonable doubt that their actions–tasering a pregnant woman who was not a threat in any way until she was unconscious–violated the Fourth Amendment.
When all is said and done, what these assorted court rulings add up to is a disconcerting government mindset that interprets the Constitution one way for the elite–government entities, the police, corporations and the wealthy–and uses a second measure altogether for the underclasses–that is, you and me.
Keep in mind that in former regimes such as Nazi Germany and the Soviet Union, the complicity of the courts was the final piece to fall into place before the totalitarian beast stepped out of the shadows and into the light. If history is a guide, then the future that awaits us is truly frightening.
Time, as they say, grows short.
John W. Whitehead is an attorney and author who has written, debated and practiced widely in the area of constitutional law and human rights. Whitehead’s aggressive, pioneering approach to civil liberties has earned him numerous accolades and accomplishments, including the Hungarian Medal of Freedom. His concern for the persecuted and oppressed led him, in 1982, to establish The Rutherford Institute, a nonprofit civil liberties and human rights organization in Charlottesville, Va. Whitehead serves as the Institute’s president and spokesperson.
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