Take the Fifth back

By Philip Carmichael
web posted July 1999

Anyone who has ever watched a police show on TV knows about the fifth amendment. I have probably heard over a hundred times that I have the right to remain silent. This right has received new fame recently in the wake of Chinese attempts to influence our election, as dozens of witnesses have "taken the Fifth".

It is not, however, the only right contained within the fifth amendment. There are no less than 5 individual rights. The other rights enumerated within this amendment receive little attention, but are just as important. Here's two no one seems to bother with any more.

"... nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, ..."

Possibly one of the most egregious violations of this right I witnessed was in the case of the officers accused of beating Rodney King. I will refrain from casting disdain on the media for their selective editing of the videotape of the incident. The selective editing that stirred up racial tensions in their city to their boiling point. The racial tensions that exploded in rioting upon the acquittal of the officers in their trial for assault. Okay, maybe I won't refrain. The real tragedy occurred when these officers were sacrificed to pay for the sins of others.

In an attempt to quell the tension in the city, the feds decided to step in and charge the officers with violating Rodney King's civil rights. But wait, weren't they already found innocent? Oh no, that was assault, and a state charge. This is violating his civil rights , and a federal charge. Double jeopardy doesn't apply. Oh no, I think it does. The fifth amendment says "same offence". Whether you call it assault, or violation of civil rights, it's still the same offence, the rest is just a label. You cannot separate two distinct actions where at one point they were allegedly assaulting him, and another where they were allegedly violating his civil rights. Both charges stem from the same acts. I don't know if their lawyers raised the double jeopardy issue in the trial, I didn't follow it that closely to be honest. If they didn't, then they had stupid lawyers. If they did and it was rejected, then they had a stupid judge. Of course I won't mention the forum shopping the government did to make sure they were convicted. Oops, I guess I will.

"... nor be deprived of life, liberty, or property, without due process of law, ..."

A new police tactic has appeared that threatens everyone's liberty. Actually it's been around for a while, but even I thought it was a good idea at the time. This is the seizure of personal property used in the commission of a crime. It was initially sold to the public as a way to fight the war on drugs. They police showed off flashy cars, plush yachts, and wads of cash. Look what an impact were having they said. Everyone applauded, then went back to their lives, oblivious to the menace this really posed.

Soon we began hearing stories of luxury cars with out of state plates being confiscated because they were supposedly used in drug trafficking. Never mind that no drugs were found in the car. It had spaces available that could have been used for hauling drugs. Yeah ... that and every other car in the world.

There was also this little tidbit I heard of recently of a man travelling with a large amount of cash. He was detained by customs as a suspected drug smuggler. Sounds okay so far. After questioning, when his story checked out, and a search for drugs turned up empty, the agents tested the cash itself. It seems it contained traces of drugs. Poof, bye bye money. Never mind the fact that I've heard something like 97% of all paper money can be found to contain traces of narcotics.

In both these examples there was that one little thing they forgot before confiscating their new toys. Due process of law. In neither of these examples was anyone convicted of actually being a drug trafficker. Now try proving your innocence. Even harder, try getting your stuff back.

I am amazed that the U.S. Supreme Court has actually upheld this practice. It was reported by Reuters on Yahoo that "The justices said the Florida Supreme Court was wrong in throwing out Tyvessel White's drug conviction, based on two pieces of crack cocaine the police found in the ashtray of his seized car ... The basis for the seizure was the belief by the police, based on eyewitnesses and videotapes, that the car had been used in the delivery and sale of cocaine on three occasions. The car was taken under state forfeiture law." It certainly seems reasonable that once the police have confiscated the car they would be able to search it without a warrant since it is now their car. The fifth amendment clearly states that you shall not "... be deprived of ... property, without due process of law ..." Yet they have allowed the seizure " ... based on eyewitnesses and videotapes, that the car had been used in the delivery and sale of cocaine on three occasions." So if I am to understand this correctly, any eyewitness account or videotape evidence is now considered due process of law, even absent a conviction of the alleged crime?

Do the justices feel that precedent decisions already allow asset forfeiture so they need not address the issue. If they are bound by precedent then we really need just nine monkeys sitting on the bench. Some might say we already have them.

I have no problem with confiscating property used in the commission of a crime. After you've actually been convicted of a crime I see nothing wrong with society taking the profits from that crime. It clearly states that you can be deprived of property with due process of law. It also says you can be deprived of life after due process of law, which would seem to make the death penalty clearly constitutional. Sorry ACLU, no soup for you.

These are just a few examples of fifth amendment rights routinely violated. Rights that we take for granted no longer are sacrosanct. It is up to us as individuals to ensure that these rights are protected for ourselves, and for future generations.

What are we to do since it is those who purport to protect them that violate them? Our first course of action is to exercise our first amendment rights of free speech. Only a public outcry by a majority of the population will awaken those asleep at the switch in the District of Columbia. Let your voice be heard. Write to your congressman and Senators. Write to your Governor. Write to the President. Send letters to the editors of the local newspapers. Call talk radio shows. Stand on a street corner, or shout from the roof tops. Whatever it takes to enrage the public to routine violations of their civil rights.

What's our second option? Well that's why we have the second amendment.




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