Last week, a federal judge told us what we already knew.
Namely, that police in Ferguson, Mo. violated the rights of protesters demonstrating against the shooting death of Michael Brown. U.S. District Judge Catherine Perry struck down an ad hoc rule under which cops had said people could not stand still while peacefully protesting. Some were told they couldn’t stop walking for more than five seconds; others, that they had to walk faster.
Again: These were not rioters. These were citizens seeking “peaceably to assemble, and to petition the Government for a redress of grievances,” as the First Amendment gives them the right to do. So Perry’s ruling is welcome, but not particularly surprising. The no-stop dictate was so flagrantly wrong as to make any other decision unthinkable.
Still, one’s sense of righteous vindication is tempered by the fact that police felt free to try this absurd stratagem in the first place — and by the fact that this was hardly the only recent example of police using the Constitution for Kleenex.
Ferguson, let us not forget, is also the town where reporters were tear gassed and jailed and photographers ordered to stop taking pictures, which seems a pretty straightforward abridgment of the Constitution’s guarantee of freedom of the press. Meanwhile, a new ACLU report makes Boston Police the latest — but hardly the only — department empirically shown to engage in racially-biased policing, which would violate the Fourteenth Amendment’s promise of “equal protection of the laws.” And a recent Washington Post series illustrated how civil asset forfeiture laws allow police to search your vehicle, seize any cash they find and keep it, without even charging you with a crime, until or unless you prove to their satisfaction that you came by the money legally. Goodbye, Fourth Amendment protection against “unreasonable searches and seizures.” Farewell, Fourteenth Amendment stricture against seizure of property “without due process of law.”
It seems our constitutional rights are being nibbled out from under us, compromise by compromise, expediency by expediency, while we watch with dull complacence. In our unthinking mania for laws to “get tough on crime,” we actually made it tougher on ourselves, altering the balance of power between people and police to the point where a cop can now take your legally-earned money off your sovereign person and there’s little you can do about it.
“I know my rights,” an aggrieved citizen would yell once upon a time. Turns out that doesn’t mean a whole lot anymore.
Indeed, at the height of the Ferguson protests, an L.A. cop named Sunil Dutta published in the Washington Post an Op-Ed advising that, “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, he said, even if you “believe (or know)” your rights are being violated. Deal with it later.
Certainly, he’s correct that there’s nothing to be gained by making an ass of yourself or making an angry cop angrier. Nothing will be settled on a street corner.
Yet, there is something unsettling about the idea that you are only allowed to assert your rights at a later date in a different forum. The bullying behavior and contempt for the Constitution that characterized police in Ferguson ought to leave us less than sanguine with that notion, ought to encourage us to resist — at the ballot box, in the council meeting and, yes, by lawful protest — this drift toward unlimited police authority.
It’s all well and good that now, several weeks after the fact, a court affirms the rights Ferguson police denied. But that’s a poor consolation prize. An argument can be made that rights which aren’t respected in the moment they are asserted are not really rights at all.