Sunday, October 25, 2015

Enjoy Your Rights ... But Only One at a Time?

Your State's Constitution protects you from a variety of police and prosecutorial infringements on your natural rights to life, liberty and property. The US Constitution's Bill of Rights -- containing like provisions, many based on then-existing State constitutional provisions -- does the same.

Notice that I did not say that these documents grant rights to you.

Instead, those that drafted them, those that adopted them, those men knew that the source of our rights could not be the shifting and uncertain basis that a grant of permission constitutes. Rather, as Jefferson wrote in the Declaration of Independence, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Equally important, as the emphasis always seems to make its way to the three rights stated -- life, liberty, pursuit of happiness -- those men did not consider that we are endowed with just those three rights. The text states, "among these are" the particular rights asserted. Odd language indeed if our natural rights were understood by the framers of our Nation to be limited to just the right to live, the right to be free, and the right to seek happiness. Still, even a cramped view of our rights -- an unfortunate perspective too often seemingly held by governments and government agents -- suggests that more is at stake than merely being allowed to remain alive, at large, and in pursuit of happiness.

So, as suggested above, many of these rights are recognized in State Constitutions and in the US Constitution by inclusion of restrictions on the power of government, limitations on what the government and its agents may do to citizens.

For example, if police learn from a "confidential informant" that you are growing marijuana in your basement, they do NOT get to bust down your doors and search for those plants UNLESS THEY FIRST OBTAIN A WARRANT to search. That warrant must be specific as to the places to be searched and the items or persons to be seized. If the police then execute on the warrant, and find 20 pot plants, they will seize them, and likely developments include your arrest and probable indictment for manufacture for sale or distribution of a controlled substance. If you are *****indicted*****, you have the right to counsel, you have the right to confront witnesses against you, you have the right to a jury of your peers.

Now, to get to the point of this post, imagine -- on that first day you appear in court -- if the court asked you to stand up and said the following to you:
Mr Jones, the State and Federal Constitution guarantee you a broad variety of rights in a criminal prosecution. For example, you have the right to an attorney, like Ms. Smith there with you. You have a right to a speedy trial, and if you exercise that right, we'll get you right on the calendar. You have the right to a jury trial, by a jury of your peers. Oddly, though, there is nothing in either the State Constitution or the Federal one that says you get to enjoy all those rights at the same time. So, for purposes of this charge, do you prefer to be represented by an attorney, or do you prefer to have a jury trial?
Sounds improbable, right?

Since when are your rights, you might think, subject to a sort of "one per customer" rule like might be imposed by a department store for any of its Black Friday loss-leader promotions. "Oh yes, we do have a 60" flat screen television for $299.99, but quantities are limited, and only one television set per customer!" Those who framed our Declaration and Constitutions would cringe at the thought that the government could say to you, "Oh yes, we do have constitutional rights to freedom of speech, press, assembly, religion, and the like, but quantities are limited, and only one per customer."

Yet, the same State and federal constitutions guarantee both the freedoms of speech, peaceable assembly, and press, on one hand, and the right to keep and bear arms, on the other hand. So how is it that government agents, particularly police, think that if you are demonstrating -- in other words, exercising your right to freedom of speech, of assembly -- you cannot be armed and, if you're armed, you cannot be demonstrating?

One right at a time? Quantities limited?

Says who?

The Rutherford Institute is a nonprofit, public interest legal organization. Thirty years ago, I was a client of theirs.  In one of their recent cases, the Institute defeated a motion to dismiss a lawsuit, in a case that brings to public eye that niggardly approach of government agents toward the existence of, and enjoyment of, "supremely precious" and "important" but "delicate" constitutional rights.

Rutherford attorneys represent Brandon Howard. The Institute's website includes this description of the incident leading to the lawsuit:
On Monday, Aug. 26, 2013, Brandon Howard arrived at an overpass above Interstate 295 in the City of Hopewell, Va., and displayed a 6 foot by 4 foot sign that read “Impeach Obama.” Howard was carrying a DMTS Panther Arms AR-15 rifle slung over his shoulder on a strap, and a .380 caliber Bersa Thunder sidearm pistol in a belted holster on his waist. Howard lawfully owned each firearm and did not point or brandish them at any time while engaged in his First Amendment protest activity on the overpass. Howard displayed his protest sign for 30 minutes, but Howard did not directly engage with anyone. 
At about 5:30 p.m., a police officer pulled up to the area, remained in his car and observed Howard. Thereafter, three to five additional police cruisers arrived at the scene with emergency lights engaged.  Approximately eight officers exited these vehicles with their guns drawn and ordered Howard to drop his sign and get on the ground with his hands spread above his head. Howard complied with the officers’ orders. 
Despite the fact that Howard at no time made any threatening action toward the officers or anyone else, one police officer allegedly asked Howard, “What do you think you are doing threatening people on my interstate?” Howard explained that he had not threatened anyone but was simply exercising his First and Second amendment rights. Howard was then handcuffed and transported to the police station, where he was left, handcuffed, in an interrogation room for 90 minutes, after which time he had his firearms returned and was released. 
A month later, the Deputy Chief of Police acknowledged in writing that an internal investigation had concluded that one of the officers violated department policy and would be disciplined and sent to remedial training.

To clarify the ruling recently obtained, the Court refused a request (a motion) by the Defendant, Officer Hunter, to throw Howard's case out on the basis that Howard's lawsuit did not state any legally recognized basis for him to prevail over the police officer. The Institute identified Hunter as the police official that accused Hunter of threatening people, and who asserted that the overpass where Howard demonstrated was, "his overpass."

The Hopewell Police Department, whose officer is the defendant, has publicly acknowledged the error of its officers' conduct, and directed the officer to have remedial training.

Camels might apologize for sticking their nose under your tent flap. It is a hopeful sign when the involved agency quickly acts to rectify wrongs done. But the slap on the nose is the better lesson, and the Rutherford Institute's lawsuit is the better lesson too.

Some reading this post may think Howard was "out of bounds" bringing firepower to his demonstration. They may assert that other incidents of violence at the hands of criminals justifies treating those against whom no reasonable basis of suspicion that they have done wrong, or that they are contemplating doing wrong, as though they too are criminals. For any readers of such mind, I bring this post back to the opening considerations.

There is, no less in the enjoyment of our natural rights than in life, a kind of continuity, a circle, if you will, of rights. Just as the circle of life can be disrupted by ill-motivated actors and ignorant ones, the circle or continuity of our rights is, because it is both "supremely important" and extremely delicate, in want of constant, careful attention. With their representation of Mr. Howard, and their vindication thus far of his rights, the attorneys for the Rutherford Institute are proving themselves diligent and effective advocates for our natural rights.