More than three years after the City of Keene filed suit against Robin Hood of Keene, the parties in the case have filed what should be their final legal arguments at the New Hampshire Supreme Court. Robin Hooders are the activists who have made international headlines for saving thousands of innocent motorists from parking tickets in the small city of Keene.
The city’s persecution of the peaceful activists has failed at nearly every legal turn. In its first visit to the NH Supreme Court, only one aspect of the city’s harassing case was sent back to the superior court for review. The city gang then lost again at the superior court level and are now appealing that most recent decision to the Supreme Court.
The appeal is for the Supreme court to look ONLY at the lower court’s ruling regarding the request for the “buffer zone” injunction. In their 50 page brief filed with the court in late May, the city, in a footnote, withdraws their request for an injunction against me and Garret Ean. I hardly ever Robin Hood and Garret doesn’t even live in Keene anymore!
In a 34 page brief filed by our pro-bono free speech attorney Jon Meyer, he points out, using the Parking Enforcers’ own testimony, that there was at no point any kind of threat or even a safety concern: (more…)
“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.” -Sun Tzu, The Art of War
In the war against the State, we can not ignore its process. In the common battles we must, unfortunately, play by their rules. They hold a monopoly on justice and claim that anyone who does not take part in or accept the system, is still accountable to it. In Evenwel v. Abbott, U.S. Supreme Court Justice Breyer said (in reference to district apportionment),
“And those words say if you look to other parts of the Constitution, such as those, or Republican Form of Government, that what we actually want is the kind of democracy where people, whether they choose to vote or whether they don’t choose to vote, are going to receive a proportionate representation in Congress. And if you take that as a constitutional principle, that shows an objective of some of the clauses of the Constitution.”
Fighting that battle isn’t easy. I fought a case in which a superior officer called the ticket his officer wrote erroneous. He opened an investigation on the officer who issued it. The court recognized that the statute did not cover the accusation put against me. I lost. The state, it seems, favors itself. That doesn’t mean all battles are losses, and that doesn’t mean it isn’t worth fighting. All wars are fought on multiple fronts. We have hearts and minds to win, politics to penetrate and influence, legal battles to challenge and overturn. Any meaningless infighting aside, we know what the goal is and we know who our enemy is. Fighting the enemy starts with knowing them and how they operate.
The following is the summary of two very recent Supreme Court cases. Birchfield v. North Dakota heard in April 2016 and Utah v. Strieff heard in February 2016. The first sets an important limit on fourth amendment searches. The second gives police a dangerous amount of power to harass and “legally” conduct illegal searches in high crime areas. The purpose of going over them here is to understand the context of their decisions, the dangers they present to freedom, and hopefully expose avenues to fight or help others fight the precedent they set.
Birchfield v. North Dakota Oral Arguments
In Birchfield v. North Dakota, three men in three different cases refused to submit to a blood test for blood alcohol level. The state charged all three with a criminal offense for asserting their fourth amendment right. The question here is whether it is a criminal offense, not whether it is a violation. The truth of the matter is that the federal government has no jurisdiction to protect your right to free travel, it’s not in the constitution. At best, it can stop states from taxing you for, or preventing you from leaving a state to go to another. But there is no constitutional right to travel within a state or on its roads. For this reason, both the court and the Petitioner (Birchfield) recognized that the state can take away a person’s driver’s license for a refusal to submit to a blood test. That admission alone brings up a lot of issues. Primarily, is getting a drivers license a voluntary agreement to the rules of the road, and a consent to any search given reasonable suspicion?
“You know, that especially in North Dakota and sparsely populated States, you have to drive in order to — so we know that consent is — is fictional in that sense. But suppose that it was voluntary and that it was explained and so forth and the — and the — and the drivers sign it. It still seems to me you’d — you’d have an argument that it’s — it’s coerced.” -Justice Kennedy
If the state has a monopoly on licensing for the use of roads, and if they can refuse to license someone, or take a license away without reason (which they can do), then why do they need consent to search someone driving on the roads they have full control over? The lack of a right to travel on a federal level has left a large and dangerous power gap between the state and the people.
“Assume a State can condition the — the ability to drive on a State’s roads on consenting to a blood-alcohol test, perhaps under certain circumstances. Let’s say this is done in writing at the time when the person applies for the license, so it’s not — it’s not just implied. Why does that — what is different about that situation from a number of other situations that I can think of? For example, conditioning a — a license to operate an interstate passenger train on submitting to a blood-alcohol test in the event of reasonable suspicion. The person is operating the — the train under the influence of — of alcohol, or the same thing with someone who is operating aircraft. Or suppose there were a law that said that if you want to enter certain government buildings, such as this building, the — the condition of entering is consenting to a search, and you have to sign something, you have to go through the magnetometer. And then if a person got through that, and there was reasonable suspicion that the person had smuggled in some kind of a weapon, the person would be subjected to a search. What would be the difference between that situation and this situation?” -Justice Alito
It’s hard to deny the logic. The state has already secured the power to submit people to searches in many areas. In the case of blood alcohol tests, evidence dissipates over time. A refusal could mean time for a suspect to sober up. The Chimel Rule allows for warrantless searches of an arrested person for safety, escape prevention, and destruction of evidence. While this may only apply to arrested persons, an officer may conduct a field sobriety test based on reasonable suspicion in order to obtain probable cause for an arrest. And then conduct a warrantless search for BAC (Blood Alcohol Content). In any case, the state holds the power.
“Mr. Chief Justice, and may it please the Court: The North Dakota statute strikes a bargain with individuals who wish to use the State’s public roads. Conditioning their use thereon, on consent to a blood-alcohol test, if arrested for drunk driving, the Court has held that this is a valid bargain, and that States may enforce it with the imposition of significant consequences, including license revocation and the use of test refusal as evidence in criminal proceedings.” -Thomas R. McCarthy, North Dakota
“What about another bargain, if people find that texting while driving is becoming an increasing problem, and so when you get a license, you’re — you give implied consent for the officer to look at the texts or whatever they can look at on your cell phone to make sure, you know, a minute ago you were texting somebody while driving? Is — would that be acceptable under your rationale?” -Justice Roberts
As North Dakota asks for more power by a decision of the Supreme Court, the potential for a slippery slope becomes clear. If getting a license is implied consent to a search, isn’t it implied in all cases, not just DUI suspicions? When the Respondent (North Dakota) claimed that getting a warrant makes their job more difficult. Justice Sotomayor snapped back by telling them to get a warrant anyway. On the argument that magistrates aren’t always available at odd hours, she responded:
“So that excuses you from a constitutional requirement? We’re now going to bend the Fourth Amendment, which I always thought started on the presumption that we favor warrants, we don’t disfavor them. But since many jurisdictions seem to manage it, we give a pass to North Dakota because it doesn’t want to?” -Justice Sotomayor
The point is reinforced, if the state already has the power to suspend someone’s license based only on or less than suspicion, why then do they need to conduct any further search? Justice Sotomayor suggested that there is another, underlying goal here for the state. And that the argument doesn’t make sense. Indeed, it is likely that North Dakota’s representatives believe they should be able to search anyone at any time without jumping through any hoops to make sure there is no misconduct.
In a 7-1 decision, the Supreme Court decided that in order to do a blood test for BAC, a warrant is required. However, because of the perceived difference in privacy violations, they reaffirmed that a warrant is not required to do a breathalyzer test, only reasonable suspicion.
Thanks to the liberal interpretations of the interstate commerce clause and the lack of a right to free travel, the government holds an uneven amount of power over the people on the roads. It is through transportation that they have their entry into people’s lives. It is their ticket to harass and collect revenue on victimless crimes. While the government has managed to regulate our personal lives, what we do in our own homes, and how we trade with others, nowhere are the violations of natural human rights more visible. But by understanding the state’s limits on what they can and can’t do, according to their own monopolized justice system, we can better understand where to take the fight.
Utah v. Strieff Oral Arguments
In Utah v. Strieff, a police officer doing a sting on a suspected drug house stopped Strieff who was coming out of the house and discovered an outstanding warrant during questioning. After the arrest for that warrant, the officer found meth on Strieff. The defense argues that the detainment was illegal to begin with. While the arrest may be legal, the evidence recovered during the search is not admissible because the officer obtained it under illegal means. If he found evidence by illegal means, it falls under the exclusionary rule and it is not admissible in court. The issue is, if an illegal detainment, by pure chance, turns up a warrant, does that cancel out the exclusionary rule?
In the case of Ferguson, Utah, the city was openly issuing arrest warrants for minor violations to the point that 80% of the population had outstanding warrants. (Really, 80%.) The city was then using those warrants as an excuse to investigate anyone with a minor suspicion. Just to justify searches. The state legal representative fully recognized this and did not argue against it.
Joan Watt, the representative for Strieff, argued that allowing officers to stop people, solely to check for warrants when they have no suspicion, would destroy the fourth amendment. Both sides agree on the legality of a Terry Stop, which says police may stop people and frisk them based on a reasonable and articulable suspicion. What’s at issue is if they can stop people without that suspicion, just so they can check for a warrant.
Justice Roberts brought up a comparison to traffic stops. Officers usually run people’s plates before approaching the vehicle as a matter of safety. He asks, how is that, on a legal basis, any different? Is there a difference between checking warrants for safety and checking warrants for investigation? However, it’s made clear that police can not pull people over without reasonable suspicion to begin with. This is why in New Hampshire at a traffic stop, passengers are not considered detained, but the driver is.
Justice Alito showed resistance to the case by clarifying that the arrest was lawful because of an outstanding warrant. And that the search was lawful due to the arrest. But the evidence found during that search was the fruit of an unlawful detainment. Even if the officer has reason to believe Strieff was just exiting a drug house, proximity to a suspicious place does not justify a lawful Terry Stop according to Ybarra v. Illinois.
A 5-3 decision ruled that if an unlawful detainment results in a lawful arrest based on a warrant unrelated to the situation, any evidence found is admissible in court. Justice Sotomayor dissented by writing that this case allows police officers to take advantage of their own unconstitutional conduct. In areas that have high rates of outstanding warrants (such as 80%), this ruling incentivizes officers to conduct unlawful searches (for which they will most likely not be challenged) in the hopes of finding a warrant. A direct contradiction of the purpose of the fourth amendment. She wrote that the ruling creates a “second-class” of citizens who are now subject to police misconduct based on whims and guesses. People in cities like Ferguson, Utah, who we know the city subjected to unjustified warrants, are now vulnerable to harassment and searches at any time without any suspicion that they’ve committed a crime.
In this second case, Justice Sotomayor is rightfully recognizing that government power is rarely challenged by those most subject to it. If officers have the power to stop people without suspicion, based on the gamble that there is an outstanding warrant, they will use it. It is important to resist power on the street by asserting your rights and within the courts by defending your own peaceful actions. Some people have found the idea of clogging the courts with victimless cases to be reprehensible. But if people challenge tickets more often, they’ll be less likely to receive them for transient reasons, and officers will more likely use their own discretion and judgment to seek the safety of the community rather than revenue collection.
No matter your political beliefs, blindly giving into every accusation the state throws at you gives them power you don’t want to give them. If you stop fighting, the government will keep grabbing power. Something simple you can do to help yourself, the people who have been arrested for selling products, feeding those in need, singing and dancing. For the people who have serious victim based cases that do not get speedy trials because of a broken system with backward priorities. One simple thing you can do to help shift this balance of power back in favor of the people is to always defend yourself when you were not in any moral wrong in any peaceful manner possible. Show the courts you won’t stand for a lack of officer discretion and obvious revenue collection tactics. Keep yourself educated, and don’t take the plea.
No, not that Salem. This past Monday I went to Rich Paul’s hearing. I have been in court in New Hampshire before, and have seen videos of court proceedings in New Hampshire. I am fairly sure that most, if not all of these, took place in Keene. I have lived in New Hampshire for a little over seven months and so far my impression of the gang is that they tend to play by their own rules and they are one of the least oppressive gangs I have come across. Not freedom by any means, but better than anything I had ever hoped to see.
That characterization of Keene, NH or NH might not be a fair representation of the entire story. No gang leader wakes up one day and says “Hey, I think maybe I’ll start following at least the Constitution, quit making illegal arrests, and be somewhat less oppressive.” I’m just really happy, and still somewhat in disbelief, about the fact that I can walk around on the sidewalk, drive at night, tell jurors about nullification *on state “property*,” and warn people about checkpoints in complete safety. I don’t have people walking up to me telling me I look suspicious with their gun half-drawn. But you don’t get that way for nothing. Since we don’t have the resources (and some of us don’t have the philosophical consistency) to actually get rid of the problem, people who came before me had to fight issues up and bring attention to problems to the point where the State decided that the best thing to do is retreat.
So it makes sense to me that Keene is less un-free than Salem. When we walked into court one of the guards asked Ian what his camera was (it was in a bag, so it wasn’t obviously a camera). They then asked if there was anything going on that they didn’t know about. In Tammany they would have just not let him in with it, and presently in Keene I’m pretty sure they would have just let him in. In Salem they asked him for press credentials- which is utterly legally irrelevant. The guard at the security checkpoint directed us to a line of people, which was really confusing to me. I had assumed that we’d be walking into a court room. I found out that it was a line to talk to the prosecutor- before making an appearance. One person seemed to me to have an attorney. This seemed highly problematic to me as your first appearance is typically when you figure out what you are going to do about an attorney. People were signing pleas before they ever saw a judge, an attorney, or the inside of a courtroom. I heard the prosecutor tell one person that if he didn’t plea today then the penalty would be higher, and he was generally discouraging people from seeking lawyers or hearings. It would be illegal for a judge to do this.
We got to the front of the line and walked into the room. I was honestly worried about the prosecutor not wanting to let extra people in, but I walked in like I owned the place and that seemed to be what the rest of us did. The prosecutor immediately told Ian that he needed to get the camera out of there. Rich responded that he wanted it to be filmed. At which point the prosecutor refused to talk to him because “I’m not going to be filmed.” He told Rich that he would talk to him “out there.” I’m not sure where “there” is or why its better to be filmed at that location than in the office. More importantly, I’m not sure why the prosecutor would be opposed to having plea offers filmed. Nothing can realistically be taken out of context because courthouses tend to… keep records of things. None of the parties were underage, none of the victims were underage or otherwise protected (or existing) so its not sealed. And prosecutors are lawyers; the law is their job- they don’t have the usual excuse that there is some obscure or asinine law that they don’t know about while doing their job.
Then we went into the courtroom, which had the pervasive appearance of being a revenue stream. (Some government agencies attempt to hide that sort of thing.) I had to watch the camera for a while and two prosecutors, for whatever reason, decided to stand against the back wall and kept standing closer to me. I don’t know for sure that this was intended to be intimidating, but there didn’t seem to be any other reason for it. When Ian got back I went and sat down. Even though I had my phone on silent, the alarm went off. I turned it off as quickly as possible as I have this fear of State agents. If I had been in Tammany, they would have taken the phone and fined me a minimum of $50. To their credit the, I’m assuming he was a bailiff, just told me to take it out and come back once I’m not using it. I don’t think that I saw a single defense attorney in the entire courtroom. In fact, I hope that that’s the case because all of the lawyers that I did see appeared to be operating as prosecutors. (Unfortunately, if you have crappy defense attorneys sometimes it can be difficult to tell the difference.) The charge was dropped to just below New Hampshire’s threshold for requiring a jury.
Brandon Pinney Awaits Trial in a “Fuck Cops” Handmade Shirt
Brandon Pinney is a NH native who is now facing a year in jail for telling state police to fuck off. His is a classic case of being oppressed for freedom of speech. Historically, people arrested for flipping off or telling off police have been vindicated on appeal. It may not be nice to say mean things to cops, but freedom of speech is meant to protect unpopular speech.
Brandon was arrested at Surry Dam when after doing five-miles over the speed limit he was confronted by a forest ranger. We don’t know exactly how their interaction went, because Brandon did not record video. According to Brandon, the ranger berated him about the speeding and Brandon blew him off in an unkind manner. The ranger then said he would be calling the police and Brandon followed him back to his office. The ranger claims Brandon was pounding on the office door yelling at him, while Brandon says he was not pounding on the door and was in no way threatening the man.
However, the ranger’s testimony was that he was frightened and when state police arrived, Brandon told them to fuck off, and when he repeated it at the request of one of the staties, Brandon was arrested.
One note – during trial, Burke said nothing about his shirt, but at sentencing, wearing the same shirt, Brandon was told if he did it again it would be contempt of court. Not only can you not express yourself to police, you can’t express yourself via your wardrobe. Whatever happened to freedom? You generally don’t find it at the district court level.
It was the first official event hosted by the Free State Project after the February 3 announcement that the group had reached it’s goal of 20,000 signers on the statement of intent to move to New Hampshire to “exert the fullest practical effort toward the creation of a society in which the maximum role of government is the protection of individuals’ rights to life, liberty, and property.” Liberty Forum 2016 was part celebration of all that has been accomplished over the past 15 years by the nearly 2,000 early movers, i.e. people who made the move to New Hampshire for the Free State Project prior to the move being triggered, and part conference on how to move forward. (more…)