Sunday, January 29, 2012

The Shadow of Claude Dallas

 Senseless, lawless violence -- government reduced to its essence: BLM employee C.J. Ross commits a felonious assault on Nevada property rights activist Ken Greenwell, in Palomino Valley, Nevada, November 13, 2001. Greenwell had staged a peaceful protest of the BLM's theft of cattle belonging to rancher Ben Colvin. Ross, acting on behalf of the rustlers, took offense. Note the contrast between Ross's snarling, feral visage and the incredulous composure displayed by Greenwell, and ask yourself: Which of these two displays the civilized face of freedom?

When they arrived at the cattle camp in Nevada’s Paradise Valley, the three shabbily dressed men claimed that they were interested in a job. Their timing was a bit odd; it was November, a little late in the year for a ranch to take on new hires. As it happens, the visitors weren’t looking for work as buckaroos; they were looking for the wiry, brown-haired ranch hand named Claude.

“You’re Dallas, aren’t you?” one of the strangers, a man named Frank Meale, asked the hand. When the young man replied that he was, Meale-- an undercover FBI agent -- and his two comrades -- FBI agent George Schwinn and Elko County Deputy Sheriff Noel McElhany – seized him, cuffed him, and stuffed him into the worn-out pickup truck that had brought them to the bunkhouse. 

A few months earlier, Claude Dallas had been secretly indicted by a federal grand jury, triggering a nation-wide manhunt by the FBI and the U.S. Marshals Service. Dallas, an Ohio native, had drifted west to Nevada, where he found work as a cowboy. Polite, disciplined, and literate, Dallas distinguished himself by his appetite for honest work and his general disdain for the dissipations available in local saloons. He was also disinclined to talk about his background – a trait he shared with many others who chose this itinerant lifestyle.

“Claude is true Old West,” commented rodeo champion Cortland Nielsen. “A lot of guys try it, but the first time they have to shave with cold water they change their mind. Claude keeps going after it and after it. He should’ve been alive in the old days – a scout, the guy you send a day or two ahead to tell you how things are. He’d be perfect.” A photographer from National Geographic agreed with that assessment, which is how Dallas ended up being featured in a story entitled “The American Cowboy in Life and Legend” – a clue not even the FBI could miss. 

The officers who arrested Dallas said he was polite and friendly. His captors didn’t reciprocate. Dallas was flown across the country, frog-marched through airports in handcuffs and a belly chain. On his arrival in Mt. Gilead, Ohio, he was thrown into a drunk tank, where he was singled out for abuse by sheriff’s deputies.  

Dallas was regarded as an exceptionally depraved offender: He was a “draft dodger,” having refused induction in 1968. This isn’t because he was afraid to fight, or unable to – a fact well understood by the predatory bureaucrats who tracked him down. 

“Most likely he’ll try to run, but he may try to shoot it out,” Meale told the other two members of his snatch team just before the abduction. “We’ll have to shut him right down.” 

That “arrest” took place in November 1973 – nearly a year after the Vietnam War officially ended. The indictment against Dallas had been issued the previous July – a month after the draft was discontinued. Yet the Feds insisted on stalking Dallas, humiliating him, abusing him, and trying to put him in a cage. After the case against him was dismissed because of procedural mistakes by the Mt. Gilead Draft Board, one of his kidnappers promised that the persecution wouldn’t end.

“I’m gonna get you, Dallas – even if it’s just for tax evasion,” the FBI agent hissed in his ear as the cowboy was released. 

When Dallas returned to Paradise Valley, his fellow ranch hands noticed an ominous change in his disposition. 

“They wouldn’t have took me like this if they hadn’t got the drop on me,” he fumed to friends in the bunkhouse. Dallas “was publicly heard to swear that no one would ever outdraw him again – no one,” recounted Jack Olsen in his book Give a Boy a Gun. “One of his closest friends asked how he felt about the draft and the Vietnam War. He said that he would fight for his country if he were asked in a nice way, but `nobody’s gonna order me around.'” 

Roughly seven years later, two Idaho fish and game wardens – Bill Pogue, a former Winnemucca, Nevada police chief, and Conley Elms – tracked down Dallas’s campsite about three miles on the Idaho side of the Nevada border in Owyhee County. Dallas, who had spent several years working intermittently as a ranch hand and trapper, had developed a reputation among fish and game officials – and Pogue most likely considered himself just the man to rein in the “renegade.” 

Pogue, like other self-important martinets who see themselves as indispensable cogs in the “mighty machine of the State,” was an authoritarian prig who expected deference from Mundanes. Dallas, according to Jim Stevens, an eyewitness to the January 5, 1981 confrontation, wasn’t unduly impressed by the uniformed bureaucrat. Dallas, Stevens later recalled, possessed “eyes that showed no fright.” This obviously wouldn’t turn out well for someone.

Ever since he had arrived in the West, Dallas had frequently displayed an insouciant disregard for poaching laws. He had a handful of bobcat hides in his camp. Although Dallas had a valid Idaho trapper’s license, bobcat season wouldn’t open until January 9 – four days later. Pogue told Dallas that he was going to be cited for possessing illegal hides and venison taken out of season. Then, according to Stevens, Pogue said he would have to arrest Dallas.

Those words would prove to be a death warrant.

 “Are you going to take me in?” Dallas asked Pogue. At the time, Dallas and the two game wardens stood at points of a triangle roughly five to six feet apart. At some point, Pogue made a threatening gesture to his pistol. Stevens, who was busy elsewhere in the camp, didn’t see what happened next – but he heard the unmistakable report of a handgun, and whirled around to see Dallas in a shooter’s crouch, and a bloodstain spreading across Pogue’s chest. A fraction of a second later, Dallas shot Elms as well.

The wardens almost certainly died instantly. Nevertheless, Dallas delivered a coup de grace to each of them with a .22 rifle.

“Why, Claude? Why?” exclaimed Stevens in horror.

“I swore I’d never be arrested again,” replied Dallas. “They were going to handcuff me.”

Stevens would later testify that the wardens did not threaten Dallas’s life “in any way.” This isn’t true: Every demand made by a government official contains the implicit threat of lethal violence against those who refuse to comply. This was particularly true of the armed strangers who threatened to kidnap Dallas at gunpoint – something not mandated by what they called the law, but made necessary by Bill Pogue’s punitive nature. 

“Nobody has the right to come into my camp and violate my rights,” Dallas insisted as Stevens absorbed the bloody aftermath of the encounter. “In my mind it’s justifiable homicide.”

Many people in Idaho and throughout the Intermountain West agreed with that evaluation during the lengthy manhunt and high-profile trial that followed the killings. The arrest was illegitimate, which meant that Dallas – under the Bad Elk precedent – had the right to use lethal force in self-defense. He didn’t ambush the wardens; he was outnumbered by armed, truculent men, and outdrew them. 

It is true that Dallas had been poaching hides and game. Consider this: Seven years earlier, the Feds had seized him out of season, as it were, by arresting him after Congress had rescinded the hunting license it had granted the draft-nappers. There’s no moral case to be made for the proposition that poaching game is a crime, but poaching human beings is sound and defensible public policy. 

Claude Dallas was not a saint, but he only became a killer when he was cornered by gun-wielding government employees who most likely would have found some way to validate the FBI agent’s threat: The Federal Government would find some way to “get him,” no matter how trivial the violation. 

The lethal encounter between Dallas and the Idaho game wardens “fundamentally changed the relationship between the West and those charged with preserving its resources,” opined the Twin Falls Times-News in an editorial clotted with collectivist assumptions (derived from the notion that the earth is the State’s and the fullness thereof). “Before Jan. 5, 1981, we had wilderness rangers; ever since we’ve had wilderness policemen. The conservation officer who checks your fishing license nowadays is more likely than not to be armed.” 

Of course, this isn’t a novelty, given that the wardens who threatened to kidnap Dallas were carrying weapons and prepared to use them. The most important difference is that most wilderness “policemen” have adopted the swaggering, imperious disposition of William Pogue. 

Consider the case of Chico, California resident Jeff Newman, 53, a life-long avid skier who operates a painting business. As a sideline, Newman "tunes" skis and teaches others how to perform this kind of maintenance.

With the exception of a decade he spent in the employment of the Forest Service (more appropriately called the Sylvan Socialist agency, or SS), Newman has made an honest living. In early 2010, Newman and some friends he had met in the employ of the SS visited Colby Meadows in the Lassen National Forest, one of their favorite skiing destinations.

Years earlier, Newman and his friends built a bulletin board -- with the permission of the SS -- on which could be posted maps and emergency information. During their recent visit, one of Newman's friends, Larry Chrisman, posted an advertisement for Newman's ski tuning service on the otherwise vacant bulletin board.

 Neither of them thought more of the matter until a few days later, when an armed, bellicose SS troglodyte named Paul Zohovetz materialized on Newman's doorstep in full battle array. Newman initially thought Zohovetz was a customer. Quite the opposite was the case: He had traveled more than fifty miles to threaten Newman with a citation for posting a commercial flier without the specific permission of the SS.

As is often the case in such situations, the foul-tempered official busybody began to harass Newman about matters that had nothing to do with the flier.

"I'm not sure what this is all about," Newman complained.

"You're under arrest," snarled Zohovetz by way of reply.

Newman commanded the armed intruder to leave his property. Zohovetz, already guilty of criminal trespass, compounded the crime by threatening to attack Newman with a deadly weapon by pointing his Taser at the man's face and neck.

That’s right: Even the Regime's forest rangers are now equipped with portable electro-shock torture devices.

"He had this look in his eyes like he wanted to beat the crap out of me," Newman recalled. A diabetic who suffers from permanent nervous system damage, Newman was understandably concerned that a Taser attack would kill him. So as any rational person would, he fled into his house. His deranged assailant, badly overestimating his physical prowess, tried to kick down the door, succeeding only in leaving a muddy footprint.

Newman called Chrisman to his home as a witness. Zohovetz, having failed in his effort to bully the mild-mannered Newman by himself, called for backup from the local police department. After his friend arrived, Newman emerged from the house, only to be handcuffed. As a result of not taking insulin yet that day, he went into convulsions.

Satisfied that he'd made whatever point he sought to make, Zohovetz released Newman and told him that he was only issuing a "warning" regarding the flier. He also issued a citation for "threatening an officer," a charge that carries a six month jail sentence and a $5,000 fine.

The appropriately named SS spokesman John Heil insisted that Zohovetz behaved appropriately by driving 50 miles to issue a "warning" and then needlessly escalating a trivial matter into a life-threatening confrontation. 

When the case went to trial in March 2011, U.S. District Court Magistrate Craig M. Kellison ruled that Zohovetz “had no right to remain on Newman’s property once he had been ordered to leave.” He also cited a Supreme Court precedent acknowledging that the “freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” 

It’s all but certain that those in the leadership echelons of SS are aware of the outcome of that case – and it’s just as likely that they have made a conscious decision to ignore it. This would explain a nearly fatal incident involving SS officer Shawn Tripp that took place in Montana’s Little Belt Mountains last November 26. 

 Bill and Tammie McCutcheon, residents of Roundup, Montana, were on a hunting trip with their four children – two teenagers and 18-month-old twins. Tammie, along with her 12-year-old daughter and the twins, had pulled over to the side of the road while Bill and the couple’s teenage son gone into the nearby forest. 

 Tripp, who was patrolling on a four-wheeler, approached the truck from behind. Tammie told the Billings Gazette that she initially thought Tripp, who was wearing a jacket with no insignia identifying himself as a federal officer, was another hunter. When she asked Tripp who he was, the SS officer “refused to identify himself and demanded that she get out of the truck.” 

Things became immediately and dramatically worse, recounts the Gazette. Tripp began “questioning her about whether they had driven past the `road closed’ sign…. Tammie McCutcheon said she was worried about her twins alone in the truck but was trying to respond to Tripp's questions. The encounter escalated, Tammie McCutcheon said, when Tripp tried to remove a hunting tag from the antlers of a deer in the back of the couple's truck. Tammie McCutcheon said she believed Tripp had no authority to remove the tag, and she grabbed it from his hand, bumping against him as she reached for the tag.”

Owing to the State supremacist indoctrination he had received, Tripp perceived that incidental contact as the high and grievous crime – nay, sin – of “assaulting a federal official.” Accordingly, he grabbed the terrified mother, threw her up against the truck, and roughly cuffed her hands behind her back. He then shoved her face-down on the open tailgate and began to paw the shrieking woman beneath her clothes. 

Tripp might consider this a “search”; by any rational definition, it was a sexual assault by an armed stranger who had spit out several angry demands but refused to identify himself (not that doing so would have justified his actions).

“I thought I was going to get raped," Tammie later recalled. The noise attracted the attention of her husband Bill, who had reached the top of a small nearby hill – and looked down to see, from about 100 yards away, a man on top of his wife as she screamed for help.

Hurrying down the hill, Bill ordered the assailant to leave his wife alone. As Tripp later admitted on the record, the properly infuriated husband never pointed his rifle at him – even though he would have been well within his legal and moral rights to use lethal force to stop the assault. Tripp, however, drew his pistol and pointed it at Bill, ordering him to drop his rifle. At one point, according to Tammi, the “unstable” and “muttering” SS enforcer pointed his sidearm at the couple’s 12-year-old daughter. 

A call for assistance issued by Tripp was answered by Wheatland County Sheriff Jim Rosenberg, who was hunting nearby. The Sheriff, who should have arrested Tripp for aggravated armed assault and sexual battery, chose instead to arrest Bill, who was held in jail for five days before being released. Significantly, in an interview with an investigator hired by the McCutcheons’ attorney, Sheriff Rosenberg was told by Tripp that Bill never pointed the rifle at him.

Nonetheless, Bill and Tammie were indicted in federal court on January 26 on charges that they “forcefully assaulted, resisted, opposed, impeded, intimidated, and interfered” with Tripp. Bill McCutcheon faces 20 years in prison and a $250,000 fine; Tammie – whose “crime” consisted of protecting herself from a sexual assault, could be sentenced to 8 years in prison and a $100,000 fine.

 During a dispute over the SS’s actions in closing down a road in Nevada’s Elko County a decade ago, the Jarbidge Shovel Brigade, a local citizen’s group ran a radio ad describing the agency’s personnel as “armed and dangerous.” 

“The Forest Service has a new policy of issuing citations for the following offense: Operating any vehicle off road in a manner which damages or unreasonably disturbs the land, wildlife or vegetative resources,” observed the radio spot. “If apprehended by Forest Service personnel, consider them armed and dangerous and cooperate with them to the fullest. Then contact the Jarbidge Shovel Brigade for assistance.” 

That prompted a petulant complaint from the SS that the ads were “inflammatory” and tended to promote “ill will” toward the agency. Oh, dearie dear – we can’t have that, can we?

Like Jeff Newman – who was once employed by the agency -- Bill and Tammie McCutcheon can testify of the indisputable truth of the characterization offered by the Shovel Brigade. Their experiences also underscore the wisdom of having the means to defend one’s self and one’s family in the event one encounters a predatory Fed in the wilderness – or, as Newman’s case demonstrates, in one’s own home.  

For killing the two wardens who tried to kidnap him, Claude Dallas eventually served 22 years for voluntary manslaughter. The foreman of the jury that convicted Dallas later said that he would have been acquitted of all charges if he hadn’t delivered what was most likely a gratuitous coup de grace. The Regime remembers those details. We should, as well. 

Obiter Dicta

Owing to travel, unanticipated difficulties on the home front (Korrin is doing much better now; my earnest thanks to everyone who has expressed their concerns on her behalf), and my responsibilities over at Republic magazine, posting here has been sporadic as of late. I appreciate your patience, and your continued material support. I'm generally posting at least one short piece -- sometimes two or more -- each day at Please drop by and sign up for your free digital subscription!

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Dum spiro, pugno!

Wednesday, January 18, 2012

Santorum: State Murder as a "Moral Enterprise"

“God did not just give us rights,” pontificated His High Holiness Rick Santorum during a January 17 campaign stop in Lexington, South Carolina. “He gave us a moral code by which to exercise them. See, that’s what Ron Paul sort of leaves out. He leaves out [that the] rights and responsibilities that we have come from God…. And he says, `No, we just have rights, and then that’s it.’ No, we don’t. America is a moral enterprise.” And morality, Santorum believes, is best instilled through State coercion, including officially sanctioned murder.

Santorum presented that assessment just a few hours after a GOP debate in which Dr. Paul precipitated torrential booing from the pious Republican crowd by insisting that government is bound by the central tenet of the Christian moral code – the Golden Rule. 

According to Newt Gingrich – whose General Urko act drove the assembled Republicans into a simian frenzy of bloodlust – it is “irrational” of Paul to insist that there are limits on the government’s powers of discretionary killing. 

Elaborating on that idea in a January 18 interview with South Carolina pastor Kevin Boling, Gingrich asserted that Dr. Paul’s insistence on applying the Golden Rule to foreign policy demonstrated that he had absorbed the “anti-American, self-hating attitude of the American Left.” 

That accusation of moral lassitude against Dr. Paul – who served in the military as a young father with two small children – dribbled down the multiple chins of an impenitent Chickenhawk who used his wife as a draft deferment, then spent the last few years of the Vietnam Era schtupping college girls. ("We would have won in 1974 if we could have kept him out of the office, screwing [a young volunteer] on the desk,” lamented his congressional campaign director.) 

 In the same interview, Newt -- who is the Hogarthian embodiment of several of the deadly sins – reiterated the indolent smear that most of Paul’s core supporters are young people obsessed with recreational drug use (something in which Newt indulged before emerging as the self-appointed “Teacher of Civilization”). Perhaps inspired by Santorum’s example, Newt used that caricature as the basis for his own little collectivist homily.

“We have been endowed by our Creator with certain unalienable rights, but that means we have to be citizens,” Newt decreed, claiming that “a heroin addict or a methamphetamine addict [has] lost the ability to be a true citizen.”

There is nothing in the Declaration of Independence that describes rights as contingent on citizenship. According to that document, individual rights are innate and unalienable; government, on the other hand, enjoys a contingent existence, and can be altered or abolished whenever it imperils those rights. In that scheme, the purpose of citizenship is to restrain the government, rather than to submit to its supposedly ennobling influence.

Like most of the people who support him, Dr. Paul has no interest in drug consumption, recreational or otherwise. He simply understands that the federal government has no constitutional authority to wage war on drug consumption, and that no government anywhere has the moral authority to regulate what individuals choose to ingest. He likewise understands that prohibition always engenders lethal violence – something vividly illustrated by the horrendous death toll exacted by Washington’s proxy drug war in Mexico, which has claimed more than 40,000 lives since 2006.

Once again, Dr. Paul’s perspective on this question is informed by the New Testament: “Not that which goeth into the mouth defileth a man; but that which cometh out of the mouth, this defileth a man…. Do not ye yet understand, that whatsoever entereth in at the mouth goeth into the belly, and is cast out into the draught? But those things which proceedeth out of the mouth come forth from the heart; and they defile the man. For out of the heart proceed evil thoughts, murders, adulteries, thefts, false witness, blasphemies....” (Matthew 15:10-12, 16-19) 

While Jesus of Nazareth never uttered a syllable endorsing drug prohibition, He had a great deal to say denouncing war and related violence. To judge from the priorities and behavior of the “Christian” Right, one would assume that exactly the opposite were the case. 

Although Rick Santorum’s politics are detestable, he is a robustly decent husband and father. That certainly isn't true of the human pustule called Newt Gingrich. Although sharply different in terms of their personal deportment, Santorum and Gingrich share a totalitarian worldview: They assume that while nobody is virtuous enough to govern himself, they belong to a consecrated caste that is holy enough to rule over others. 

Reaching for a big historical idea and falling badly short, Santorum attempted to depict Dr. Paul as a Jacobin:

“I would argue that [Dr. Paul’s] understanding of the Constitution was similar to the French Revolution…. Their founding watchwords were the words, `liberty’ and `fraternity.’ Fraternity. Brotherhood. But no fatherhood. No God. It was a completely secular revolution. An anti-clerical revolution. And the root of it was, whoever’s in power rules.”

Bear in mind, once again, that Santorum offered that description of the candidate who – just hours earlier – had been publicly ridiculed for insisting that God’s law, the Golden Rule, applies to everybody, including those who preside over the criminal enterprise called the State. Furthermore, among the current GOP presidential contenders, Dr. Paul is the only candidate to extol the Constitution as a law that restrains the government. Santorum, on the other hand, consistently seeks to restrain the individual and emancipate the State. While he insinuates that Ron Paul is an anarchist (he isn’t -- none save One was perfect, after all -- but he should be), Santorum has giddily celebrated State lawlessness. 

During an October visit to South Carolina, Santorum endorsed assassination as an instrument of policy when employed by the U.S. government.

“On occasion, scientists working on the nuclear program in Iran turn up dead," he explained, broadly intimating that the U.S. government was responsible. "I think that's a wonderful thing, candidly….I think we should send a very clear message that if you are scientist from Russia or North Korea or from Iran, and you are going to work on a nuclear program to develop a nuclear bomb for Iran, you are not safe."

Santorum, who is regarded by some misguided conservatives as a champion of the pro-life cause, warned those who doubt that the U.S. government would assassinate civilian scientists should take heed to the way it treats American citizens designated enemies of the State: "When people say, `You can't go out and assassinate people' — well, tell that to al-Awlaki…. We've done it. We've done it to an American citizen."

Actually, the Obama administration not only assassinated U.S.-born Islamic cleric Anwar al-Awlaki — who was never charged with a crime of any kind, let alone convicted and sentenced by a court -- but also al-Awlaki's 16-year-old son, Adbdulrahman al-Awlaki, who was killed by a drone strike in Yemen while he was having dinner with a cousin (who also perished).

The Obama administration circulated the story that the 16-year-old was actually an adult “suspected” of being a “militant,” thereby redefining the killing as a strategic success. But the family was able to document that the youngster — who had gone to Yemen in a frantic search for his father, known to be on a U.S. assassination list — was born in Colorado in 1995.

Behavior of this kind is generally associated with the likes of Saddam Hussein and Kim Jong-Il. Proponents of an aggressive foreign policy often characterize the regimes ruling countries such as Iran, Syria, and North Korea as despotisms that routinely "murder their own citizens," and thus pose a threat to the peace of the world. Yet Rick Santorum — who yields to nobody in his zeal to wage war against distant and relatively powerless regimes — openly celebrates the summary execution of U.S. citizens, and describes it as a model for similar "wet work" operations against citizens of other countries. 

For Santorum, the defining principle of politics is power, not liberty. His chief ideological inspiration is not the imperfectly realized individualist James Madison, or even the centralizing constitutionalist James Madison, but the arch-authoritarian Joseph de Maistre, the 18th Century apostle of absolutism. His role model in policy terms could well be the murderous “Operative” from the film “Serenity.”

Maistre taught that “all greatness, all power, all social order depends on the Executioner; he is the terror of human society and tie that holds it together. Take away this incontrovertible force from the world, and at that very moment order is superseded by chaos, thrones fall, society disappears." 

Santorum visibly shares the fear that society will disintegrate if the State is deprived of the discretionary power to kill people. In the film “Serenity,” the Operative acted as Maistre’s Executioner on behalf of a galaxy-spanning bureaucratic empire called the Alliance. He spent most of the film pursuing River Tam, a brilliant and irrepressibly individualistic young girl with psychic abilities who had been abducted by the regime and programmed to be an assassin.

River’s brother, a gifted physician named Simon, sacrificed his future to free River, and the two of them wound up aboard the Serenity, a merchant ship commanded by a noble but embittered man named Malcolm Reynolds. Years earlier, Malcolm (or Mal) had fought with the “Browncoats,” a group of separatists who waged a valiant but losing battle for impendence from the Alliance. 

In his pursuit of River and Simon, Alliance forces commanded by the Operative lays waste to an outpost called Haven, where Mal and his crew had briefly found refuge. Similar Alliance attacks have destroyed every other colony where Mal might have taken cover.
“I’m sorry,” the Operative explains to Mal following the massacres. “If your quarry goes to ground, leave no ground to go to…. [D]id you think none of this was your fault?”

“I don’t murder children,” Mal replies with frigid disgust.

“I do,” the Operative unblinkingly replies. “If I have to.” 

“Why?” Mal demands. “Do you even know why they sent you?”

“It’s not my place to ask,” the Operative wearily explains. “I believe in something greater than myself. A better world. A world without sin.” 

Although he possesses none of the Operative’s fearsome martial prowess, Rick Santorum likewise believes it is possible to build a better world through State murder – not just Iraqi, Afghan, Pakistani, and (soon) Iranian children, but American children like Abdulrahman al-Awlaki. 

It’s little wonder that Santorum – like Newt Gingrich and the death cult adherents who compose much of the GOP’s rank and file -- finds Ron Paul’s devotion to the Golden Rule to be morally unsatisfactory. 

Thanks, once again...

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Dum spiro, pugno!

Tuesday, January 10, 2012

When the Right to Resist Becomes the "Duty to Submit"


Anne Dekins was a loud-mouthed party girl -- or at least, that's what the arrest warrant suggested. Whatever she may have done in the past, Miss Dekins was quietly minding her own business when Officer Samuel Bray found her on the street and began to haul her away.

Dekins wasn’t inclined to go quietly, and she put up a struggle. Her cries for help attracted the interest of several armed men led by an individual named Tooley, who confronted Bray and demanded to know what he was doing to the frantic woman. The officer produced his official credentials and insisted that he was making a lawful arrest for “disorderly conduct.” When witnesses disputed that description, Bray called for backup. 

Tooley and his associates ordered Bray to release the woman, and then took action to enforce that lawful order. After Bray’s partner was killed in the ensuing struggle, Tooley and his associates were arrested for murder. The trial court threw out the murder charge, ruling that the warrant was defective. Since the arrest was illegal, the court pointed out, Dekins had a right to resist – and bystanders likewise had a right, if not a positive duty, to assist her. The defendants were eventually found guilty of manslaughter, but quickly pardoned and set free. 

By trying to enforce an invalid warrant, Bray “did not act as a constable, but a common oppressor,” observed the trial court. Tooley and the other bystanders were properly “provoked” by the act of aggressive violence against Anne Dekins, and their forceful but measured response – first demanding that the abductor release the hostage, then exercising defensive force to free her – was entirely appropriate. 

Lawless violence against the helpless “is a sufficient provocation to all people out of compassion” in any circumstance, observed the court, “much more where it is done under a colour of justice, and where the liberty of the subject is invaded….” In fact, an act of that kind carried out by a law enforcement official is nothing less than “a provocation to all the subjects of England.”

Every Englishman “ought to be concerned for Magna Charta and the laws,” concluded the Queen’s Bench in the 1710 case Queen v. Tooley. “And if any one against the law imprison a man, he is an offender against Magna Charta.”

Roughly forty years earlier, the same court had issued a similar opinion in Hopkin Huggett’s Case. Huggett and his friends had come to the aid of a man who had been arrested by a constable named Berry. Huggett demanded to see the arrest warrant. When Berry produced a clearly spurious document, Huggett drew his sword and demanded the prisoner’s release. Berry refused, and finished second in the ensuing swordfight. 

The wrongfully arrested man in that case (who was threatened with impressment into the military) did nothing to resist his abduction. It wasn’t clear that Huggett knew the man, or had even met him prior to the incident. Yet the Queen’s Bench ruled that Huggett’s actions were justified, since a situation in which a “man [is] unduly arrested or restrained of his liberty … is a provocation to all other men of England, not only his friends but strangers also[,] for common humanity’s sake.” 

In addition to codifying the Common Law right to resist arrest, Hopkin Huggett’s Case and Queen v. Tooley recognized that this right inheres not only in the victim, but in citizens who interpose on the victim’s behalf. 

Simply put: When a police officer commits the crime of unlawful arrest, the citizens who intervene are acting as peace officers entitled to employ any necessary means – including lethal force – to liberate the victim.

In early 18th Century England, this was seen as a non-negotiable bulwark against what the heroic Algernon Sidney called “the violence of a wicked magistrate who, hav[ing] armed a crew of lewd villains,” would otherwise inflict his will on innocent and helpless people with impunity. Sidney’s martyrdom at the hands of precisely that kind of degenerate, tyrannical magistrate underscored the vitality of the principle he expressed.  

 “The right to resist unlawful arrest memorializes one of the principal elements in the heritage of the English revolution: the belief that the will to resist arbitrary authority in a reasonable way is valuable and ought not to be suppressed by the criminal law,” observed Paul Chevigny in a 1969 Yale Law Journal essay. Actually, Chevigny – like many others – elides a critical distinction between “power” and “authority”: While a police officer may have the power to abduct or abuse an innocent person, citizens have the authority to prevent that crime.

Until the late 1960s, most states recognized – albeit grudgingly -- the Common Law right to resist arrest. By 1969, that right had been transmuted, through judicial activism, into a revocable “privilege” – one that had to be dispensed with to serve the interests of the State's punitive caste.

“The weight of authoritative precedent supports a right to repel an unlawful arrest with force…. This was the rule at common law,” admitted the Alaska State Supreme Court in a seminal work of sophistry called Terry Glenn Miller v. State of Alaska. “It was based on the proposition that everyone should be privileged to use reasonable force to prevent an unlawful invasion of his physical integrity and personal liberty.”

That admission clearly anticipated the familiar use of the magical conjunction “but” as a rhetorical reset button, and the Court didn’t disappoint:

“But certain imperfections in the functioning of the rule have brought about changes in some jurisdictions. A new principle of right conduct has been espoused” – by whom, the Court didn’t specify. “It is argued” – once again, the parties to that argument were not identified – “that if a peace officer is making an illegal arrest but is not using force” – something that could not occur, given that an arrest, by strict definition, is an act of armed coercion – “the remedy of the citizen should be that of suing the officer for false arrest, not resistance with force.”

 “The control of man’s destructive and aggressive impulses is one of the great unsolved problems of our society,” pontificated the Court as it destroyed one of the few effective checks on the deadliest manifestation of those impulses. “Our rules of law should discourage the unnecessary use of physical force between man and man. Any rule which promotes rather than inhibits violence should be re-examined.” That objective is not legitimately served by granting State functionaries an unqualified license to commit criminal violence against the innocent. 

Four years after the Miller decision, a decision entitled Richardson v. Idaho emerged from the Idaho State Supreme Court’s emunctory aperture. John Richardson had been convicted of resisting arrest through violence and sentenced to five years in prison. The incident in which the supposed crime occurred took place at a restaurant in Idaho Falls. Richardson and his ex-wife, who were having dinner, got into an argument, and were asked to leave when the latter became loud and profane. 

Two off-duty police officers escorted them outside, and then tried to arrest Richardson for “disorderly conduct” after he became annoyed by their unwarranted intrusion. Richardson kicked one of the uniformed buttinskis in the mouth, and managed to grab one of their pistols, which he fired into the air, rather than at his assailants (as he was entitled to, both morally and – under the Supreme Court’s still-valid 1900 Bad Elk precedent – legally).

Prominently citing the Miller decision in Alaska, the Idaho Court observed that “More than one state has, without legislative action, modified the traditional common law rule and has adopted the rule that a private citizen may not use force to resist a peaceful arrest,” blithely ignoring, once again, the fact that a “peaceful arrest” is a creature more fanciful than a left-handed unicorn that speaks Norwegian. “We are of the opinion that the trend is, and should be, away from the traditional common law rule, and therefore we hold that if a person has reasonable ground to believe he is being arrested by a peace officer, it is his duty to refrain from using force or any weapon in resisting arrest regardless of whether or not there is a legal basis for the arrest.”

The key holding in the Richardson ruling has been enshrined in the Idaho Code Judicial Instructions (ICJI 1262), which asserts that “it is the person’s duty to refrain from using force or any weapon in resisting arrest regardless of whether or not there is a legal basis for the arrest.” The obverse of this spurious “Duty to Submit to Arrest” is a police officer’s privilege to commit criminal acts for the purpose of nullifying the Exclusionary Rule – something the Idaho Supreme Court acknowledged in a 2008 ruling captioned State v. Lusby

Police paid a visit to Lusby’s apartment to investigate a disturbance. She quickly grew tired of the uninvited company – what decent person wouldn’t? – and went into her apartment, closing the door behind her. One of the officers committed an act of criminal trespass and announced  that Lusby was under arrest for “obstruction” and “resistance.” At one point the bully caught an elbow in the face from the victim, a small down-payment on what he deserved – but enough to earn Lusby a charge of felonious assault on an officer. She was also charged with drug possession on the basis of evidence found in the officer’s illegal search.

Because that search was patently illegal, the trial court granted a motion to dismiss all charges against Lusby. The State Supreme Court admitted that this was the case – but insisted that Lusby’s resistance to the illegal invasion of her home retroactively legalized the unconstitutional search.

“It appears to be a nearly universal rule in American jurisdictions that when a suspect responds to an unconstitutional search or seizure by a physical attack on the officer, evidence of this new crime is admissible notwithstanding the prior illegality,” decreed the court, extracting that “rule” from precisely the same orifice from which the Richardson ruling originated. “The rationale … [is that] a subsequent attack on the officer is a new crime unrelated to any prior illegality…. Accordingly, we hold that evidence of Lusby’s alleged batter on an officer or other forceful resistance is not suppressible … [and] evidence of paraphernalia found in the search incident to Lusby’s arrest [is] admissible.”

On this construction, a police officer can nullify the Fourth Amendment anytime he pleases, simply by claiming that the victim committed the supposed crime of resisting. This can take the form of assuming an “aggressive posture,” such as “blading” the body or even putting one foot in front of the other in what can be construed as an “attack stance.” Or, as the recent assault on Austin, Texas resident Antonio Buehler demonstrates, the “assault” can be nothing more than breathing in the face of a police officer. 

Buehler, 34, is a combat veteran of Kosovo and Iraq, West Point graduate, and middle school teacher. He was serving as a designated driver on the morning of New Year’s Day when he saw a woman being abused by police outside a 7-11. The costumed assailants, officers Pat Oborski and Robert Snider, were conducting what they called a DWI arrest of a woman later identified as Norma Pizana.

To Buehler and his friends, the spectacle looked more like a gang assault.

"We hear a loud scream, and we look over, and we see the cop violently yanking the female out of the car onto the ground," Buehler told local ABC affiliate KVUE. "She is screaming. The other cop ran up and they both sort of grabbed her arms. Her hands were behind her back straight out and they lifted her up by her arms. It looked extremely painful."

With the help of a friend, Buehler began to document this act of "street justice" with his cell phone. That prompted Oborski to confront Buehler, who was not interfering in any way.
According to Buehler, Oborski barked, "What the hell are you taking pictures for?"
"My response was, `I am allowed to. Public official in a public place.'"

 As he was trained to, Oborski started to lie in an effort to devise a cover charge against Buehler. First he claimed that Buehler was somehow "interfering with the investigation," which was patently untrue. Then the cop assaulted Buhler by pushing the unresisting man — who would have been more than a match for the donut-grazer, had he chosen to fight back — up against a truck.

"Once he had me pinned up against the back of the truck he kept leaning in," Buehler continued. "He kept pushing me."

Eventually Oborski got so close that Buehler actually breathed on him — which gave him a pretext to accuse the witness of "spitting" on him. With some difficulty, and Snider’s help, Oborski wrestled Buehler (who offered only passive resistance) to the ground and handcuffed him. The cops took Beuhler to a BAT van—- a patently unreliable mobile alcohol testing unit — in the hope of documenting that the witness was intoxicated, which he wasn't. The cop finally settled on charging him with "harassing a public servant" — a third-degree felony — and "resisting arrest."

As is always the case in incidents of this kind, Buehler wasn’t arrested for an actual crime; he was vindictively punished for “contempt of cop.” 

“You don’t f*** with cops,” Oborski snarled at Buehler. “You don’t get in our f***ing way. You don’t question us, and we’re going to teach you a lesson.”

Norma Pizana’s plight was strikingly similar to that of Anne Dekins, with at least one critical difference: Dekins and her rescuers were blessed to live in 18th Century England, a relatively civilized society that recognized and protected a free individual’s indispensable right to resist State-licensed criminal violence. 

Acknowledgements and Updates

Once again, thanks to everyone who has donated so generously. This really means a great deal to me and my family.

Among the reasons why my activity here at Pro Libertate has tapered off somewhat is the fact that I've been very busy curating the blog at Republic magazine. Check out the website and, if you're interested, sign up for a free digital subscription. 

Some of you are aware that my wonderful wife Korrin has been hospitalized several times since 2006. She's in the hospital again. I would appreciate prayers on her behalf from those of you so inclined. Thank you.

Dum spiro, pugno!