John W. Whitehead – November 25, 2017
“Since when have we Americans been expected to bow submissively to authority and speak with awe and reverence to those who represent us? The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents. We who have the final word can speak softly or angrily. We can seek to challenge and annoy, as we need not stay docile and quiet.”—Justice William O. Douglas, dissenting, Colten v. Kentucky, 407 U.S. 104 (1972)
Forget everything you’ve ever been taught about free speech in America.
It’s all a lie.
There can be no free speech for the citizenry when the government speaks in a language of force.
What is this language of force?
Militarized police. Riot squads. Camouflage gear. Black uniforms. Armored vehicles. Mass arrests. Pepper spray. Tear gas. Batons. Strip searches. Surveillance cameras. Lethal weapons. Drones. Kevlar vests. Less-than-lethal weapons unleashed with deadly force. Rubber bullets. Water cannons. Stun grenades. Arrests of journalists. Crowd control tactics. Intimidation tactics. Brutality.
This is not the language of freedom.
This is not even the language of law and order.
This is the language of force.
Unfortunately, this is how the government at all levels—federal, state and local—now responds to those who choose to exercise their First Amendment right to peacefully assemble in public and challenge the status quo.
This police overkill isn’t just happening in troubled hot spots such as Ferguson, Mo., and Baltimore, Md., where police brutality gave rise to civil unrest, which was met with a militarized show of force that caused the whole stew of discontent to bubble over into violence.
A decade earlier, the NYPD engaged in mass arrests of peaceful protesters, bystanders, legal observers and journalists who had gathered for the 2004 Republican National Convention. The protesters were subjected to blanket fingerprinting and detained for more than 24 hours at a “filthy, toxic pier that had been a bus depot.” That particular exercise in police intimidation tactics cost New York City taxpayers nearly $18 million for what would become the largest protest settlement in history.
Demonstrators, journalists and legal observers who had gathered in North Dakota to peacefully protest the Dakota Access Pipeline reported being pepper sprayed, beaten with batons, and strip searched by police.
More recently, this militarized exercise in intimidation reared its ugly head in the college town of Charlottesville, Va., where protesters who took to the streets to peacefully express their disapproval of a planned KKK rally were held at bay by implacable lines of gun-wielding riot police. Only after a motley crew of Klansmen had been safely escorted to and from the rally by black-garbed police did the assembled army of city, county and state police declare the public gathering unlawful and proceed to unleash canisters of tear gas on the few remaining protesters to force them to disperse.
To be clear, this is the treatment being meted out to protesters across the political spectrum.
The police state does not discriminate.
As a USA Today article notes, “Federally arming police with weapons of war silences protesters across all justice movements… People demanding justice, demanding accountability or demanding basic human rights without resorting to violence, should not be greeted with machine guns and tanks. Peaceful protest is democracy in action. It is a forum for those who feel disempowered or disenfranchised. Protesters should not have to face intimidation by weapons of war.”
A militarized police response to protesters poses a danger to all those involved, protesters and police alike. In fact, militarization makes police more likely to turn to violence to solve problems.
As a recent study by researchers at Stanford University makes clear, “When law enforcement receives more military materials — weapons, vehicles and tools — it becomes … more likely to jump into high-risk situations. Militarization makes every problem — even a car of teenagers driving away from a party — look like a nail that should be hit with an AR-15 hammer.”
Even the color of a police officer’s uniform adds to the tension. As the Department of Justice reports, “Some research has suggested that the uniform color can influence the wearer—with black producing aggressive tendencies, tendencies that may produce unnecessary conflict between police and the very people they serve.”
You want to turn a peaceful protest into a riot?
Bring in the militarized police with their guns and black uniforms and war zone tactics and “comply or die” mindset. Ratchet up the tension across the board. Take what should be a healthy exercise in constitutional principles (free speech, assembly and protest) and turn it into a lesson in authoritarianism.
Mind you, those who respond with violence are playing into the government’s hands perfectly.
The government wants a reason to crack down and lock down and bring in its biggest guns.
They want us divided. They want us to turn on one another.
They want us powerless in the face of their artillery and armed forces.
They want us silent, servile and compliant.
They certainly do not want us to remember that we have rights, let alone attempting to exercise those rights peaceably and lawfully.
And they definitely do not want us to engage in First Amendment activities that challenge the government’s power, reveal the government’s corruption, expose the government’s lies, and encourage the citizenry to push back against the government’s many injustices.
You know how the Charlottesville mayor characterized the tear gassing of protesters by the riot police? He called it an “unfortunate event.”
You know what else is unfortunate?
It’s unfortunate that these overreaching, heavy-handed lessons in how to rule by force have become standard operating procedure for a government that communicates with its citizenry primarily through the language of brutality, intimidation and fear.
It’s unfortunate that “we the people” have become the proverbial nails to be hammered into submission by the government and its vast armies.
And it’s particularly unfortunate that government officials—especially police—seem to believe that anyone who wears a government uniform—soldier, police officer, prison guard—must be obeyed without question.
The rationale goes like this:
Do exactly what I say, and we’ll get along fine. Do not question me or talk back in any way. You do not have the right to object to anything I may say or ask you to do, or ask for clarification if my demands are unclear or contradictory. You must obey me under all circumstances without hesitation, no matter how arbitrary, unreasonable, discriminatory, or blatantly racist my commands may be. Anything other than immediate perfect servile compliance will be labeled as resisting arrest, and expose you to the possibility of a violent reaction from me. That reaction could cause you severe injury or even death. And I will suffer no consequences. It’s your choice: Comply, or die.
Indeed, as Officer Sunil Dutta of the Los Angeles Police Department advises:
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. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge. Don’t scream at me that you pay my salary, and don’t even think of aggressively walking towards me.
This is not the rhetoric of a government that is of the people, by the people, and for the people.
This is not the attitude of someone who understands, let alone respects, free speech.
And this is certainly not what I would call “community policing,” which is supposed to emphasize the importance of the relationship between the police and the community they serve.
Any police officer who tells you that he needs tanks, SWAT teams, and pepper spray to do his job shouldn’t be a police officer in a constitutional republic.
All that stuff in the First Amendment (about freedom of speech, religion, press, peaceful assembly and the right to petition the government for a redress of grievances) sounds great in theory. However, it amounts to little more than a hill of beans if you have to exercise those freedoms while facing down an army of police equipped with deadly weapons, surveillance devices, and a slew of laws that empower them to arrest and charge citizens with bogus “contempt of cop” charges (otherwise known as asserting your constitutional rights).
It doesn’t have to be this way.
There are other, far better models to follow.
For instance, back in 2011, the St. Louis police opted to employ a passive response to Occupy St. Louis activists. First, police gave the protesters nearly 36 hours’ notice to clear the area, as opposed to the 20 to 60 minutes’ notice other cities gave. Then, as journalist Brad Hicks reports, when the police finally showed up:
They didn’t show up in riot gear and helmets, they showed up in shirt sleeves with their faces showing. They not only didn’t show up with SWAT gear, they showed up with no unusual weapons at all, and what weapons they had all securely holstered. They politely woke everybody up. They politely helped everybody who was willing to remove their property from the park to do so. They then asked, out of the 75 to 100 people down there, how many people were volunteering for being-arrested duty? Given 33 hours to think about it, and 10 hours to sweat it over, only 27 volunteered. As the police already knew, those people’s legal advisers had advised them not to even passively resist, so those 27 people lined up to be peacefully arrested, and were escorted away by a handful of cops. The rest were advised to please continue to protest, over there on the sidewalk … and what happened next was the most absolutely brilliant piece of crowd control policing I have heard of in my entire lifetime. All of the cops who weren’t busy transporting and processing the voluntary arrestees lined up, blocking the stairs down into the plaza. They stood shoulder to shoulder. They kept calm and silent. They positioned the weapons on their belts out of sight. They crossed their hands low in front of them, in exactly the least provocative posture known to man. And they peacefully, silently, respectfully occupied the plaza, using exactly the same non-violent resistance techniques that the protesters themselves had been trained in.
As Forbes concluded, “This is a more humane, less costly, and ultimately more productive way to handle a protest. This is great proof that police can do it the old fashioned way – using their brains and common sense instead of tanks, SWAT teams, and pepper spray – and have better results.”
It can be done.
Police will not voluntarily give up their gadgets and war toys and combat tactics, however. Their training and inclination towards authoritarianism has become too ingrained.
If we are to have any hope of dismantling the police state, change must start locally, community by community. Citizens will have to demand that police de-escalate and de-militarize. And if the police don’t listen, contact your city councils and put the pressure on them.
Remember, they work for us. They might not like hearing it—they certainly won’t like being reminded of it—but we pay their salaries.
“We the people” have got to stop accepting the lame excuses trotted out by police as justifications for their inexcusable behavior.
Either “we the people” believe in free speech or we don’t.
Either we live in a constitutional republic or a police state.
We have rights.
As Justice William O. Douglas advised in his dissent in Colten v. Kentucky, “we need not stay docile and quiet” in the face of authority.
The Constitution does not require Americans to be servile or even civil to government officials.
Neither does the Constitution require obedience (although it does insist on nonviolence).
This emphasis on nonviolence goes both ways. Somehow, the government keeps overlooking this important element in the equation.
There is nothing safe or secure or free about exercising your rights with a rifle pointed at you.
The police officer who has been trained to shoot first and ask questions later, oftentimes based only on their highly subjective “feeling” of being threatened, is just as much of a danger—if not more—as any violence that might erupt from a protest rally.
Compliance is no guarantee of safety.
Then again, as I point out in my book Battlefield America: The War on the American People, if we just cower before government agents and meekly obey, we may find ourselves following in the footsteps of those nations that eventually fell to tyranny.
The alternative involves standing up and speaking truth to power. Jesus Christ walked that road. So did Mahatma Gandhi, Martin Luther King Jr., and countless other freedom fighters whose actions changed the course of history.
Indeed, had Christ merely complied with the Roman police state, there would have been no crucifixion and no Christian religion. Had Gandhi meekly fallen in line with the British Empire’s dictates, the Indian people would never have won their independence.
Had Martin Luther King Jr. obeyed the laws of his day, there would have been no civil rights movement. And if the founding fathers had marched in lockstep with royal decrees, there would have been no American Revolution.
We must adopt a different mindset and follow a different path if we are to alter the outcome of these interactions with police.
The American dream was built on the idea that no one is above the law, that our rights are inalienable and cannot be taken away, and that our government and its appointed agents exist to serve us.
It may be that things are too far gone to save, but still we must try.
This article was originally published at Rutherford.org. Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People (SelectBooks, 2015) is available online at www.amazon.com.
Twilight of the Courts: The elusive search for justice in the American Police State
Why police cannot (and Will Not) protect our rights
Why police prefer drug raids over investigating violent crimes
London taxpayers pay the salaries of police officers, who are well paid! Why do taxpayers also have to pay for the mistakes of police officers?
Do the police provide safety and enforce the law EQUALLY for all citizens?
When is theft a more serious crime than rape or murder?
When we are relieved of accountability for our actions, bad things happen
Police, Courts, and Prisons: Part 1 – The problems