Rick Horowitz is an unapologetic blogger and a vigorous criminal defense lawyer in California. This is an unusually mouthy combination. Rick pulls no punches blogging at Probable Cause, where he enjoys the broad protections of the First Amendment to the Constitution of the United States of America.
But the First Amendment is but a law, and any criminal defense attorney will tell you there is a wide dark gulf between the law and the application thereof.
Rick wrote a blunt and angry post, the upshot of which was that the state has no moral authority to demand adherence to laws that its own agents refuse to follow. It's pointed now; imagine what it was like before he toned it down a bit.
Your approach should be to try to live your life, as much as possible, without giving them one minute of your time. If they want to talk to you, you should ask, “Am I being detained, or arrested?” If they say “no,” then you walk away. If they tell you that you cannot leave, then you stay put, but don’t talk to them. Because they aren’t following the law when they detain you for no reason.
And if the government will not follow the law, there is no reason why anyone else should.
Let me repeat that:
If the government will not follow the law, there is no reason why anyone else should.
So this is the proposal I set forth:
To the government, you can start following the law, or none of us will.
To everyone else, if the government will not follow the law, you should stop pretending law means anything.
It’s time to step away from the wrong.
Start fighting over everything!
All of this was unquestionably within Rick's rights. The words were not obscene. They did not convey child pornography. They did not convey a threat. They did not create a clear and present danger of imminent lawless action.
But those are points of law. Law recognizes rights; power disdainfully ignores them. Power is, for instance, the ability to detain, search, wrongfully accuse, tase, beat, or shoot you with relative legal and social impunity. Police have that sort of power. You do not. Rick does not.
Rick was reminded of this when, as a consequence of writing his blog post, he was singled out for invasive and repeated searches at the courthouse as he went about his business of representing people accused of crimes.
You have to empty your pockets.”
“What?,” I asked.
“You have to empty your pockets.”
The officer said something about a new security issue or something along those lines. He stated that they were making all court personnel and attorneys empty their pockets now.
“A court person went through just ahead of me,” I said, motioning in the direction the prosecutor had gone. “You didn’t check her.”
And then one of them told me it was because of my blog post yesterday. He even specifically referenced the sentence that they found so offensive. “So now you’re a security risk,” I was told.
The Fresno County Sheriff’s Department, however, has proven that I was on the right track. In addition to the above, I went through two more complete searches — basically, every time I left the court, when I returned, I was searched again. They opened my bag, and then opened everything inside my bag, on the pretense that they were looking for “something metal” that showed up in the x-ray machine. What they did today proved that they can be a lawless force which, when it does not get its way, is to be both feared and resisted.
The Fresno County Sheriff's Department is not an outlier. The Fresno County Sheriff's Department represents the heartland of law enforcement thought about criticism, dissent, monitoring, and attempts to impose accountability upon the people who are privileged by the law to arrest and/or kill us. That is a heartland where people who inquire how to file a complaint against police are threatened, reviled, and abused. That is a heartland where cops argue that monitoring them is a threat or that it is a crime and are willing to arrest you on ludicrous pretexts to stop it. That is a heartland where law enforcement thinks that discussing your constitutional rights when confronted by them is evidence of criminality. That is a heartland where cops think they have a right not to be mocked and a right to expect you'll shut your fucking mouth, where writing something they don't like is an occasion for a knock on your door in the dead of night. This is a heartland where challenging the cops' actions makes you a suspect and a target. This is a heartland where cops feel they should have the right to use any amount of force against you they see fit, even if normal non-sociopathic people would find that use of force wanton and freakish.
This heartland survives — and thrives — because the media is too often a pliant lapdog to law enforcement, and because the populace — lulled by generations of cop shows and law and order rhetoric and statistics-defying fear peddled by the media — either likes it or doesn't give a shit.
The Fresno County Sheriff's Office can harass Rick and engage in retaliatory searches of him. Your local police can do the same to you. But they can't harass and search us all. Have you spoken up?
I called and wrote the Fresno County Sheriff's Public Information Officer for a comment on this story, but have not yet been able to get one. I will update if I do.
Check out Gideon's take on this as well.
Edited to add: Sam Glover shows what Rick wrote that he decided to edit. It's Rick's decision to delete it, but — with all respect to him — I am linking to Sam's revelation of it because it is important to evaluating the law enforcement response. It might be rhetoric that some don't like, but it is patently rhetoric and patently not a true threat or a clear and present danger of anything.
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