Know Your Rights - 5th Amendment

As many of you probably know yesterday it was 224 years since the ratification of the U.S Bill of Rights. The Bill of Rights is the collective name for the first ten amendments to the United States Constitution, so this week I want to talk about some of the 10 amendments, so you could (maybe) learn about your rights a little bit more, since the law is being violated in our country quite a lot these days. Today’s topic is the 5th Amendment.

For starters, here’s the original text of the Amendment.

I’ve gotta be honest, it’s one of the most common situations in which authorities abuse the law and in most cases these rights are taken away from people of color. So It’s highly important for PoC to know this very well, if not by heart, not be afraid to report cases of the 5th Amendment’s violation.

You have the right to remain silent!

You have the right to terminate an encounter with a police officer unless you are being detained under police custody or have been arrested. The general rule is that you don’t have to answer any questions that the police ask you.

However, if you are being detained/arrested, please do not ever forget about Miranda’s warning (which is a “preventive criminal procedure rule that law enforcement are required to administer to protect an individual who is in custody and subject to direct questioning or its functional equivalent from a violation of his or her Fifth Amendment right against compelled self-incrimination”). You might have heard the first two warnings a lot on movies, but there are more:

There is much more to each of the amendments, with the 5th Amendment not being an exception, but I wanted to emphasize the things that are most important in my opinion. Truly hope this can help someone. 

#FifthAmendment    #KnowYourRights   


This morning, the world learned of the passing of legendary folk singer Pete Seeger.

In March of 1961 Seeger was facing trial for contempt of Congress after refusing to testify before the House Un-American Activities Committee. 

Pete Seeger wrote to President Kennedy:

“I would not take up your valuable time with my personal problem, except that I feel it is a very fundamental one which concerns all America these days.  Do I, or does any citizen, have the right to hold unorthodox opinions, whether they are purely right or horribly wrong, and do I have the right to join with others who think similarly?”

Arlo Guthrie also wrote to JFK asking him to “please do what you can for Pete Seeger." 

-from the Kennedy Library 

The California Supreme Court has ruled that the silence of suspects can be used against them.

Wading into a legally tangled vehicular manslaughter case, a sharply divided high court on Thursday effectively reinstated the felony conviction of a man accused in a 2007 San Francisco Bay Area crash that left an 8-year-old girl dead and her sister and mother injured.

Richard Tom was sentenced to seven years in prison for manslaughter after authorities said he was speeding and slammed into another vehicle at a Redwood City intersection.

Prosecutors repeatedly told jurors during the trial that Tom’s failure to ask about the victims immediately after the crash but before police read him his so-called Miranda rights showed his guilt.

Legal analysts said the ruling could affect future cases, allowing prosecutors to exploit a suspect’s refusal to talk before invoking 5th Amendment rights against self-incrimination.

“It’s a bad and questionable decision,” said Dennis Fischer, a longtime criminal appellate lawyer.

Tom’s attorney Marc Zilversmit said he is deciding whether to petition the U.S. Supreme Court to take up the issue or renew his arguments in the state court of appeal.

“It’s a very dangerous ruling,” Zilversmit said. “If you say anything to the police, that can be used against you. Now, if you don’t say anything before you are warned of your rights, that too can be used against you.”

The state Supreme Court in a 4-3 ruling said Tom needed to explicitly assert his right to remain silent — before he was read his Miranda rights — for the silence to be inadmissible in court.


The Price of Silence: Supreme Court Rules That Pre-Miranda Silence Can Be Used Against Defendant To Prove Guilt | Jonathan Turley

In a major loss for individual rights vis-a-vis the police, the Supreme Court ruled 5-4 that prosecutors could use a person’s silence against them in court if it comes before he’s told of his right to remain silent. The prosecutors used the silence of Genovevo Salinas to convict him of a 1992 murder. Because this was a non-custodial interview, the Court ruled that the prosecutors could use his silence even though citizens are allowed to refuse to speak with police. It is of little surprise that the pro-police powers decision was written by Samuel Alito who consistently rules in favor of expanding police powers. [continue]


Teacher disciplined for informing kids of 5th amendment rights

High school teacher John Dryden from Illinois faces disciplinary action from his school district for informing kids they had the right to not answer questions on a school survey. The questions were about the kids’ tobacco, drug, and alcohol use, and answering them might have incriminated the kids. The Resident (aka Lori Harfenist) discusses the story.

New York Cops Know People Have a Right to Record Them; They Just Don't Care

From his car, Brooklyn resident Dick George sees a couple of cops exit an unmarked vehicle and perform a “stop and frisk” and three black youths. George takes pictures of this encounter. After the cops walk away, George tells youths that next time they should demand badge numbers.

Cops overhear this and one says “What did he just say to them, get our badge number? … Let’s go get him,” or words to that effect. The cops then accost George:

After stopping George’s car, the cops roughed him up, handcuffed him, and took him to the precinct house, where he was strip-searched, locked in a cell, and charged with disorderly conduct. When he got his cellphone back after being released with a desk appearance ticket, he found that the photos of the stop-and-frisk encounter had been deleted.

According to George’s complaint, the cops repeatedly told him he was getting what he deserved for “being an activist.” Ferber allegedly said something like: “Now we are going to give you what you deserve for meddling in our business and when we finish with you, you can sue the city for $5,000,000 and get rich. We don’t care.”

That estimate was off by a factor of 40. The New York Daily News reported on Monday that the city agreed to settle George’s lawsuit for $125,000. “After a thorough review of the case facts,” a lawyer for the city said, “it was in the best interest of all to resolve this matter without costly litigation and trial.”

The officers, of course, are not on the hook for any of that money, which will instead come out of taxpayers’ pockets. And judging from the comments reported by George, the prospect of litigation does not deter this sort of unlawful bullying. The problem was not that the cops didn’t realize they were violating George’s rights; it was that they did not care, because they did not expect to suffer any negative consequences as a result—for good reason, according to the lawsuit:

The supervisory staff of the NYPD has consistently failed to investigate allegations such as those contained herein and to discipline officers who have violated NYPD guidelines. The investigation of these incidents by central office and/or supervisory staff reflects a bias in favor of uniformed officers. Furthermore, officers and staff who are known to have violated an individual’s civil rights in one command are often transferred by NYPD to another command rather than be disciplined, demoted or fired by the NYPD.

The cost of settling lawsuits like George’s helps explain the recent NYPD memo. But reminding cops that they are supposed to respect people’s constitutional rights will not accomplish much unless they suffer personally for violating them. Since courts have ruled that cops do not receive qualified immunity in cases like this (because the right to record them is well established), officers can theoretically find themselves owing damages to the people they victimize. But the usual practice in settling cases is to drop claims against individual cops along with claims against the city and the police department. Maybe it is time to reconsider that practice. The threat of financial ruin would be harder to laugh off than the threat of taxpayer-funded damages.

Yet another example of the unofficial police policy on engaging suspects at work.

Judge Orders Defendant to Decrypt Laptop | Threat Level | Wired.com.

So that all is clear: this ruling means that your right to not incriminate yourself doesn’t protect you from having to unencrypt your laptop, but it does protect you from having the fact that you DID unencrypt it used against you.

This case, notably, isn’t about whether or not the police can force you to unencrypt your laptop as part of a search, i.e. your 4th Amendment rights in this situation. Which is something that I can’t help but wonder about.

Women, Combat & The Constitution

Over at The Skeptical Libertarian, Daniel Bier observes that the Pentagon’s recent decision to lift the bar on women in combat roles may place previous Supreme Court rulings regarding gender-based Selective Service on shaky ground:

In 1981, the District Court for the Eastern District of Pennsylvania ruled that the practice did in fact violate the 5th Amendment, and it prohibited further registration under the Act. The government appealed to the Supreme Court. In the 6-3 decision in Rostker v. Goldberg, the Court ruled in favor of the Selective Service. Justice William Rehnquist wrote the majority opinion defending the discriminatory practice, saying, “Congress acted well within its constitutional authority to raise and regulate armies and navies when it authorized the registration of men and not women.”


The Court ruled that the gender-based distinction was not unconstitutional because the draft was designed to recruit soldiers for combat duties, and because the military did not and could not place women in combat, the law was consistent in excluding them from registration. The reason Congress excluded women from registration is not because they are women, said Rehnquist, but rather because of the unrelated regulation prohibiting them from serving in combat roles.

With the Pentagon’s decision to remove the ban on women in combat, the Court’s logic no longer holds, and the government will find itself once again afoul of the Constitution, based on the decision that saved the Selective Service Act the last time. If the law faces a legal challenge, the courts would likely have to once again issue an injunction stopping Selective Service registration, unless Congress fixes the law to include the now combat-approved women.

I think this analysis is sound.  Rehnquist’s now-infamous argument in Goldberg was that women are not “similarly situated” with respect to combat duty, such that Congress could reasonably decide that a male-only draft system was in the national interest.  However, with the ban now being lifted, there is one extraordinarily important sentence in the case that places its core holding in present jeopardy:

[T]he Constitution requires laws to treat similarly situated individuals equally, not that Congress “engages in gestures of superficial equity.”

By lifting the ban, the Pentagon has essentially destroyed the notion that men and women are not similarly situated with respect to military service.  That places gender-specific Selective Service within the cross-hairs of Rehnquist’s decree: if the Constitution does require laws to treat similarly situated individuals equally, and it turns out that men and women are in fact similarly situated with respect to combat duties, then gender specific Selective Service becomes difficult to justify under the Goldberg framework.  

If Goldberg was struck down, then it would likely mean that we’d see a gender-neutral Selective Service.  This would of course be a historic moment for gender equality.  Justice Marshall, in his dissent in Goldberg, chastized the Court for “placing its imprimatur on one of the most potent remaining public expressions of ‘ancient canards about the proper role of women[,]’”—namely, that they are fragile and thus ill-suited for ‘man’s work,’ such as combat.  Both Marshall and Brennan argued that by excluding women from a fundamental civic obligation like military service, the majority was essentially incorporating misogynistic gender-based assumptions about the abilities of women.  This, of course, invokes some of the objections contained in the Declaration of Sentiments, wherein the Suffragettes noted the injustice of laws that rendered women “civilly dead,” and laws which “made [women], morally, an irresponsible being[.]”  A Selective Service that affects only males, Marshall argued, tends to invoke these evils by infantilizing women.  As Justice Marshall noted in his Goldberg dissent:

Legislative classifications which distribute benefits and burdens on the basis of gender carry the inherent risk of reinforcing sexual stereotypes about the `proper place’ of women and their need for special protection… . Where, as here, the [Government’s] … purposes are as well served by a gender-neutral classification as one that gender classifies and therefore carries with it the baggage of sexual stereotypes, the [Government] cannot be permitted to classify on the basis of sex.

With the “similarly situated” logic of Goldberg displaced, I think there is solid ground to suppose that Justice Marshall’s logic would carry the day in a future legal challenge.  With the ban on women in military combat roles lifted, we may see a universal Selective Service sometime in the near future.

Police Say 'Flex Your Rights' DVD is Illegal

Police raided a marijuana dispensary in Washington, D.C. and found the informative video on how to deal with the police. This is what they had to say about that:

Your Affiant notes that while this DVD is informative for any citizen, when introduced into a store that promotes the use of a controlled substance this DVD becomes a tool for deceiving law enforcement to keep from being arrested. The typical citizen would not need to know detailed information as to US Supreme Court case law regarding search and seizure because they are not transporting illegal substances in fear of being caught.


Can the president kill an American simply because the person is dangerous and his arrest would be impractical? Can the president be judge, jury, and executioner of an American in a foreign country because he believes that would keep America safe? Can Congress authorize the president to do this? …
If the president can kill an American in Yemen, can he do so in Peoria? Even the British king, from whose tyrannical grasp the American colonists seceded, did not claim such powers. And [they] fought a Revolution against him.
What Mike Huckabee Means By Giving 14th Amendment Rights To Fetuses [TW: Anti-Abortion Extremism]
Last night’s Republican presidential debate on Fox News featured plenty of disturbing rhetoric about women, from the ridiculous (Donald Trump’s weird ad hominem attack on Rosie O’Donnell) to the infuriating (Marco Rubio speaking out against rape and incest exceptions) to the terrifying (Scott Walker clarifying that he does not support allowing abortions that would save the lives of pregnant women). But Mike Huckabee took things to a new level when he calmly presented his plan to grant legal “personhood” to fertilized eggs and fetuses.

Last night’s Republican presidential debate on Fox News featured plenty of disturbing rhetoric about women, from the ridiculous (Donald Trump’s weird ad hominem attack on Rosie O’Donnell) to the infuriating (Marco Rubio speaking out against rape and incest exceptions) to the terrifying (Scott Walker clarifying that he does not support allowing abortions that would save the lives of pregnant women).

But Mike Huckabee took things to a new level when he calmly presented his plan to grant legal “personhood” to fertilized eggs and fetuses.

Some commentators have mistaken Huckabee’s comment as a call for a constitutional amendment to reverse Roe v. Wade. That’s not what he meant.

Instead, Huckabee was embracing a radical legal theory, disputed even in anti-choice circles, that holds that a constitutional amendment overturning Roe isn’t necessary to end legal abortion. This theory holds that the majority opinion in Roe contains a magic loophole that allows Congress to simply declare zygotes “persons” under the Fifth and 14th Amendments, which would then criminalize abortion nationwide in one fell swoop, no constitutional amendment needed. One of the most adamant proponents of this theory in Congress is Huckabee’s fellow GOP presidential candidate, Rand Paul.

Here was Huckabee’s answer to Chris Wallace’s question about his “strong positions on social issues,” including favoring “a constitutional amendment banning abortions, except for the life of the mother”:

Chris, I disagree with the idea that the real issue is a constitutional amendment. That’s a long and difficult process. I’ve actually taken the position that’s bolder than that.

A lot of people are talking about defunding Planned Parenthood, as if that’s a huge game changer. I think it’s time to do something even more bold. I think the next president ought to invoke the Fifth, and 14th Amendments to the Constitution now that we clearly know that that baby inside the mother’s womb is a person at the moment of conception.

The reason we know that it is is because of the DNA schedule that we now have clear scientific evidence on. And, this notion that we just continue to ignore the personhood of the individual is a violation of that unborn child’s Fifth and 14th Amendment rights for due process and equal protection under the law.

It’s time that we recognize the Supreme Court is not the supreme being, and we change the policy to be pro-life and protect children instead of rip up their body parts and sell them like they’re parts to a Buick.

As we detailed in our recent report on the personhood movement, this plan is not popular with many of the major anti-choice groups, which have been pursuing a strategy of slowly chipping away at abortion access and the legal protections in Roe, and who argue that a federal personhood bill would backfire bigtime.

But if Huckabee’s dubious legal strategy were to work, the consequences would be enormous. Not only would granting “personhood” to fetuses ban abortion in all but the rarest case where a pregnant woman and a fetus are both in mortal danger, it would put women who suffer miscarriages at risk of prosecution and jail time. The ambiguous wording of such measures has led many to fear that they could also outlaw common forms of birth control.

And the consequences could extend far beyond reproductive rights, as we wrote in our recent report:

By redefining what it means to be a person under the law, personhood measures could also have a broad legal impact on issues unrelated to reproductive rights, threatening to upend everything from inheritance law to census results . In 2014, the Colorado Bar Association opposed the state’s personhood ballot measure, warning that the vaguely worded measure would have “potentially serious, unintended and unknown consequences for Colorado lawyers. … From areas of Family Law to Probate Law to Real Estate Law, as well as the explicit effect on Criminal Law and Wrongful Death statutes, this Amendment could create uncertainty and endless litigation.”

Mike Huckabee’s support for the personhood movement is nothing new. But in declaring his intention to give 14th Amendment rights to fertilized eggs in a nationally televised debate, he gave a fringe movement what may be its biggest stage yet.

His personhood-esque comments are one more reason why Huckabee’s retrograde views are actively endangering the security of America. 

h/t: Miranda Blue at RWW

A nation continues to wait for final word on the Supreme Court’s Big Four cases this term — voting rights, affirmative action, DOMA, and Proposition 8 — but the justices’ closest decision arrived first on Monday, in a 5-4 ruling on Salinas v. Texas in which the conservative members of the Court and Anthony Kennedy determined that if you remain silent before police read your Miranda rights, that silence can and will be held against you. Here’s what that means.

Basically, if you’re ever in any trouble with police (no, we don’t condone breaking laws) and want to keep your mouth shut, you will need to announce that you’re invoking your Fifth Amendment right instead of, you know, just keeping your mouth shut. “Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question,” reads the opinion from Justice Samuel Alito, which Justice Kennedy and Chief Justice John Roberts backed. Justices Thomas and Scalia had a concurring opinion while the remaining four Supremes dissented. 

The Salinas case revolves around Genovevo Salinas, a man who was convicted of a 1992 murder of two brothers. Salinas was brought in for police questioning in January 1993. According to the dissenting opinion of Justice Breyer, he was called in to “to take photographs and to clear him as [a]suspect” and Salinas was questioned without being read his Miranda rights:

Because he was “free to leave at that time,” [App.14], they did not give him Miranda warnings. The police then asked Salinas questions. And Salinas answered until the police asked him whether the shotgun from his home “would match the shells recovered at the scene of the murder [Id., at 17.] At that point Salinas fell silent.

That silence was then used against Salinas in court, and he was eventually convicted. But the bigger question in revisiting this 20-year-old murder case was whether or not prosecutors were allowed to point to that silence, and win a case using Salinas’ own silence against him.

You know what’s a much more recent wrinkle to the potential precedent effect of today’s ruling? A case like that of the younger Boston Marathon suspect, Dzhokhar Tsarnaev, who reportedly sat through 16 hours of questioning before he was read his Miranda rights. Had Tsarnaev, who was recovering from serious injuries at the time, remained silent during questioning without explicitly invoking his Fifth Amendment, prosecutors could, under the Salinas ruling, now use that silence to their advantage.

It all seems ridiculously terrifying, this idea that in order to claim your Fifth Amendment, you now need to know how to call the on-the-fly legal equivalent of "safesies.” Your right to remain silent just got more complicated, and it will require potential criminals to be more informed about their protections and the linguistic details on how to invoke them. “But does it really mean that the suspect must use the exact words ‘Fifth Amendment’? How can an individual who is not a lawyer know that these particular words are legally magic?" Breyer wrote.

Warning lands Batavia teacher in hot water - DailyHerald.com

Dryden, a social studies teacher, told some of his students April 18 that they had a 5th Amendment right to not incriminate themselves by answering questions on the survey, which had each student’s name printed on it.

The survey is part of measuring how students meet the social-emotional learning standards set by the state. It is the first year Batavia has administered such a survey.

School district officials declined to provide a copy of the survey to the Daily Herald, saying the district bought the survey from a private company, Multi-Health Systems Inc., and the contents are proprietary business information.

They did provide the script teachers were to read to students before the test. It does not tell students whether participation is mandatory or optional.

An April email communication to parents said their children could choose not to take the survey, but they had to notify the district by April 17.

Dryden said it was just “dumb luck” he learned about the contents. He picked up surveys from his mailbox about 10 minutes before his first class. Seeing students’ names on them, unlike past surveys, he started reading the 34 questions.

“Oh. Well. Ummm, somebody needs to remind them they have the ability not to incriminate themselves,” he recalled thinking. It was particularly on his mind because his classes had recently finished reviewing the Bill of Rights. And the school has a police officer stationed there as a liaison, he pointed out. Barshinger said the results weren’t shared with police.

“I made a judgment call. There was no time to ask anyone,” Dryden said. If the survey had been handed out a day or two before, he said, he would have talked to an administrator about his concern.

Instead, he gave the warning to his first-, second- and third-block classes. The test was given to all students during third block.

He suspects it was a teacher who told the administration about what Dryden had done, after the other teacher had trouble getting all the students to take the survey.