By John W. Whitehead
“What’s been most striking to me is just how
one-sided the rules are when Americans take on their
own government…. It has been dismaying to learn the
extent to which rules and laws shield the government
from accountability for its abuses—or even
lawbreaking…. It’s been a long and frightening
lesson…. The rules seem rigged to protect government
lawlessness, and the playing field is uneven. Too
many processes favor the government.
The deck is still stacked.” — Journalist Sharyl
June 16, 2020 "Information
Clearing House" - The system is rigged.
The system is rigged, the government is corrupt, and
“we the people” continue to waste our strength by
fighting each other rather than standing against the
tyrant in our midst.
Because the system is rigged, because
the government is corrupt, and because “we the
people” remain polarized and divided, the police state
will keep winning and “we the people” will keep losing.
Because the system is rigged and the U.S. Supreme
Court—the so-called “people’s court”—has exchanged its
appointed role as a gatekeeper of justice for its new
role as maintainer of the status quo, there will be
little if no consequences for the cops who brutalize and
no justice for the victims of police brutality.
Because the system is rigged, there will be
no consequences for police who destroyed a private
home by bombarding it with tear gas grenades during a
SWAT team raid gone awry, or for the cop who mistakenly
shot a 10-year-old boy after aiming for and missing the
non-threatening family dog, or for the arresting officer
who sicced a police dog on a suspect who had already
This is how unarmed Americans keep dying at the hands
of militarized police.
refusing to accept any of the eight or so qualified
immunity cases before it this term that strove to
hold police accountable for official misconduct, the
Supreme Court delivered a chilling reminder that in the
American police state, ‘we the people’ are at the mercy
of law enforcement officers who have almost absolute
discretion to decide who is a threat, what constitutes
resistance, and how harshly they can deal with the
citizens they were appointed to ‘serve and protect.”
This is how qualified immunity keeps the police
state in power.
Lawyers tend to offer a lot of complicated,
convoluted explanations for the doctrine of qualified
immunity, which was
intended to insulate government officials from frivolous
lawsuits, but the real purpose of qualified immunity
is to rig the system, ensuring that abusive agents of
the government almost always win and the victims of
government abuse almost always lose.
How else do you explain a doctrine that requires
victims of police violence to prove that their abusers
knew their behavior was illegal because it had been
deemed so in a nearly identical case at some prior time:
it’s a setup for failure.
Do you know how many different ways a cop can kill,
maim, torture and abuse someone without being held
The cops know: in large part due to training classes
that drill them on the art of sidestepping the Fourth
Amendment, which protects us from being bullied,
badgered, beaten, broken and spied on by government
This is how “we the people” keep losing.
Although the U.S. Supreme Court recognized in
Harlow v. Fitzgerald (1982) that suing government
officials for monetary damages is “the only realistic
avenue” of holding them accountable for abusing their
offices and violating the Constitution, it has
ostensibly given the police and other government agents
a green light to shoot first and ask questions later, as
well as to 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 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.
Make no mistake about it:
this is what constitutes “law and order” in the American
These are the hallmarks of a 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.
Unfortunately, we’ve been traveling this dangerous
road for a long time now.
A review of critical court rulings over the past
several decades, including rulings affirming qualified
immunity protections for government agents by the U.S.
Supreme Court, reveals a startling and steady trend
towards pro-police state rulings by an institution
concerned more with establishing order, protecting the
ruling class, and insulating government agents from
charges of wrongdoing than with upholding the rights
enshrined in the Constitution.
Indeed, as Reuters reports, qualified immunity “has
nearly failsafe tool to let police brutality go
unpunished and deny victims their constitutional
rights.” Worse, as Reuters concluded, “the Supreme Court
has built qualified immunity into an often
insurmountable police defense by intervening in cases
mostly to favor the police.”
The system is rigged.
Police can claim qualified immunity for
warrantless searches. In
Anderson v. Creighton, the Supreme Court ruled
that FBI and state law enforcement agents were entitled
to qualified immunity protections after they were sued
for raiding a private home without a warrant and holding
family members at gunpoint, all in a search for a
suspected bank robber who was not in the house.
Police can claim qualified immunity for
warrantless arrests based on mere suspicion. In
Hunter v. Bryant, the Court ruled that police
acted reasonably in arresting James Bryant without a
warrant in order to protect the president. Bryant had
allegedly written a letter that referenced a third-party
plot to assassinate President Ronald Reagan, but police
had no proof that he intended to harm Reagan beyond a
mere suspicion. The charges against Bryant were
Police can claim qualified immunity for using
excessive force against protesters. In
Saucier v. Katz, the Court ruled in favor of
federal law enforcement agents who forcefully tackled a
protester as he attempted to unfurl a banner at Vice
President Gore’s political rally. The Court reasoned
that the officers acted reasonably given the urgency of
protecting the vice president.
Police can claim qualified immunity for
shooting a fleeing suspect in the back. In
Brosseau v. Haugen, the Court dismissed a
lawsuit against a police officer who shot Kenneth Haugen
in the back as he entered his car in order to flee from
police. The Court ruled that in light of existing case
law, the cop’s conduct fell in the “hazy border between
excessive and acceptable force” and so she did not
violate clearly established law.
Police can claim qualified immunity for
shooting a mentally impaired person. In
of San Francisco v. Sheehan, the Court ruled in
favor of police who repeatedly shot Teresa Sheehan
during the course of a mental health welfare check. The
Court ruled that it was not unreasonable for police to
pepper spray and shoot Sheehan multiple times after
entering her room without a warrant and encountering her
holding a knife.
Police officers can use lethal force in car
chases without fear of lawsuits. In
Plumhoff v. Rickard, the U.S. Supreme Court
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 can stop, arrest and search citizens
without reasonable suspicion or probable cause.
5-3 ruling in Utah v. Strieff, the U.S.
Supreme Court effectively gave police the go-ahead to
embark on a fishing expedition of one’s person and
property, rendering Americans completely
vulnerable to the whims of any cop on the beat.
Police officers can stop cars based on
“anonymous” tips or for “suspicious” behavior such as
having a reclined car seat or driving too carefully.
In a 5-4 ruling in Navarette
v. California, the U.S. Supreme Court declared
that police officers, under the guise of “reasonable
stop cars and question drivers based solely on anonymous
tips, no matter how dubious, and whether or not they
themselves witnessed any troubling behavior. Then in
State v. Howard, the Kansas Supreme Court
motorists who recline their car seats are guilty of
suspicious behavior and can be subject to
warrantless searches by police. That ruling, coupled
with other court rulings upholding warrantless searches
and seizures by police renders one’s car a
Americans have no protection against
mandatory breathalyzer tests at a police checkpoint,
although mandatory blood draws violate the Fourth
Amendment (Birchfield v. North Dakota). Police
can also conduct sobriety and “information-seeking”
checkpoints (Illinois v. Lidster and Mich.
Dep't of State Police v. Sitz).
Police can forcibly take your DNA, whether or
not you’ve been convicted of a crime. In Maryland
v. King, a divided U.S. Supreme 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. The end result of the ruling
paves the way for a nationwide dragnet of suspects
targeted via DNA sampling.
Police can use the “fear for my life”
rationale as an excuse for shooting unarmed individuals.
Upon arriving on the scene of a nighttime
traffic accident, an Alabama police officer shot a
driver exiting his car,
mistakenly believing the wallet in his hand to be a gun.
A report by the Justice Department found that half of
the unarmed people shot by one police department over a
seven-year span were “shot
because the officer saw something (like a cellphone) or
some action (like a person pulling at the waist of their
pants) and misidentified it as a threat.”
Police have free reign to use drug-sniffing
dogs as “search warrants on leashes.” In
Florida v. Harris, a unanimous U.S. Supreme Court
police officers may use highly unreliable drug-sniffing
dogs to conduct warrantless searches of cars during
routine traffic stops. The ruling turns man’s best
friend into an extension of the police state, provided
the use of a K-9 unit takes place within a reasonable
amount of time (Rodriguez
v. United States).
Not only are police largely protected by
qualified immunity, but police dogs are also off the
hook for wrongdoing. The Fourth Circuit Court
of Appeals ruled in favor of a
police officer who allowed a police dog to maul a
homeless man innocent of any wrongdoing.
Police can subject Americans to strip
searches, no matter the “offense.” A divided
U.S. 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, 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 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
Police can break into homes without a
warrant, even if it’s the wrong home. In an 8-1
ruling in Kentucky v. King, the U.S. 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 use knock-and-talk tactics as a
means of sidestepping the Fourth Amendment.
Aggressive “knock and talk” practices have become thinly
veiled, warrantless exercises by which citizens are
coerced and intimidated into “talking” with heavily
armed police who “knock” on their doors in the middle of
the night. Andrew Scott didn’t even get a chance to say
no to such a heavy-handed request before
he was gunned down by police who pounded
aggressively on the wrong door at 1:30 a.m., failed to
identify themselves as police, and then repeatedly shot
and killed the man when he answered the door while
holding a gun in self-defense.
Police can carry out no-knock raids if they
believe announcing themselves would be dangerous.
Police can perform a “no-knock” raid as long as they
have a reasonable suspicion that knocking and announcing
their presence, under the particular circumstances,
would be dangerous or futile or give occupants a chance
to destroy evidence of a crime (Richards v.
Wisconsin). Legal ownership of a firearm is also
enough to justify a no-knock raid by police (Quinn
v. Texas). For instance, a Texas man had his home
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 homeowner
shot by police through his closed bedroom door.
Police can recklessly open fire on anyone
that might be “armed.” Philando Castile was
shot and killed during a routine traffic stop allegedly
over a broken tail light merely for telling police he
had a conceal-and-carry permit. That’s
all it took for police to shoot Castile four times in
the presence of his girlfriend and her 4-year-old
daughter. A unanimous Supreme Court declared in
County of Los Angeles vs. Mendez that
police should not be held liable for recklessly firing
15 times into a shack where a homeless couple
had been sleeping because the grabbed his BB gun in
defense, fearing they were being attacked.
Police can destroy a home during a SWAT raid,
even if the owner gives their consent to enter and
search it. In West v. Winfield, the
Supreme Court provided cover to police after they
smashed the windows of Shaniz West’s home, punched holes
in her walls and ceilings, and bombed the house with so
much tear gas that it was uninhabitable for two months.
All of this despite the fact that the suspect they were
pursuing was not in the house and West, the homeowner,
agreed to allow police to search the home to confirm
Police can suffocate someone, deliberately or
inadvertently, in the process of subduing them.
“I can’t breathe” has become a rallying cry following
the deaths of Eric Garner and George Floyd, both of whom
died after being placed in a chokehold by police.
Dozens more have died in similar circumstances at the
hands of police who have faced little repercussions for
As I make clear in my book
Battlefield America: The War on the American People,
we are dealing with a nationwide epidemic of
court-sanctioned police violence carried out with
impunity against individuals posing little or no real
So what’s the answer to reforming a system that is
clearly self-serving and corrupt?
Abolishing the police is not the answer: that will
inevitably lead to outright anarchy, which will give the
police state and those law-and-order zealots all the
incentive it needs to declare martial law.
Looting and violence are not the answer: As Martin
Luther King Jr. recognized, “A riot merely intensifies
the fears of the white community while relieving the
guilt.” Using the looting and riots as justification for
supporting police brutality is also not the answer: As
King recognized, “It
is not enough … to condemn riots… without, at the same
time, condemning the contingent, intolerable conditions
that exist in our society. These conditions are the
things that cause individuals to feel that they have no
other alternative than to engage in violent rebellions
to get attention. And I must say tonight that a riot is
the language of the unheard. And what is it America has
failed to hear? It has failed to hear that the plight of
the negro poor has worsened over the last twelve or
fifteen years. It has failed to hear that the promises
of freedom and justice have not been met. And it has
failed to hear that large segments of white society are
more concerned about tranquility and the status quo than
about justice and humanity.”
Police reform is necessary and unavoidable if we are
to have any hope of living in an America in which
freedom means something more than the right to stay
alive, but how we reform the system is just as
important as getting it done.
We don’t need to wait for nine members of a ruling
aristocracy who primarily come from privileged
backgrounds and who have a vested interest in
maintaining the status quo to fix what’s broken in
Nor do we need to wait for 535 highly paid
politicians to do something about these injustices only
when it suits their political ambitions
And we certainly don’t need to wait for a president
with a taste for totalitarian tactics to throw a few
crumbs our way.
This is as much a local problem as it is a national
Be fair. Be nonviolent. Be relentless in your pursuit
of justice for all.
Let’s get it done.
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 is
www.amazon.com. Whitehead can be contacted at firstname.lastname@example.org.
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