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Opinion: The Biggest Threat to Our Rights is the Government

09 September 2018  

The governments, federal, state and local, are the biggest threats to all of our freedoms.

When electronic listening devices were in their infancy, there was little case law that would direct law enforcement on the proper use of telephone wire taps or bugs placed in suspects homes, offices or businesses. At first there was little restraint on placing these devices on telephone lines or in buildings.

My father, who replaced his father, on LAPD's Gangster Squad, placed several taps and bugs on the phones or in the businesses of mobsters in the 1940s and 50s. My dad and some of the other detectives in the Intelligence Division, (into which the Gangster Squad later evolved), told me that the only legal requirement in those days was the prior approval of the Chief of Police to place such surreptitious listening mechanisms.

One of the landmark cases regarding the use of this technique was the Cahan decision, a 1955 California case involving Charles Cahan, a bookmaker. One of those bugs was planted by my father, at the request of one of the Vice Squad detectives. LAPD followed the procedure in place at the time, and obtained the prior permission of the Chief of Police. Cahan was convicted and appealed. The conviction was overturned on the theory that the evidence obtained by the phone tap and bug violated the Fourth Amendment clause regarding unreasonable search and seizure. The exclusionary rule took a big step forward and California courts and other state and federal courts, ultimately could not use illegally obtained evidence in a criminal trial. Thereafter, a search warrant, based on probable cause, was required before the placement of such devices. In retrospect, this was a good decision.

My father was upset with the Cahan decision for a couple of reasons. First, he had heard that some of the judges were looking for a case to expand the exclusionary rule. He told the Vice detective not to use any of the evidence he obtained directly from the bugs, but to develop his case from that information. Second, the decision mentioned that the “bedroom” was violated. It was true that the bug my dad planted was in a bedroom, but it was not used as such. There was no bed in the room, only a desk and a telephone, that Cahan used to take bets. In fact, neither Cahan, nor any one else slept in the house. It was used exclusively for making book, that is, taking bets on horse races.

The fact was that LAPD had enough probable cause to get a warrant. It was just a lot easier to get the prior permission from the Chief. The ultimate result was that law enforcement learned how to write and obtain valid search warrants. They are an excellent tool, when used properly.

When they are not used properly, they can be the cause for the overturning of convictions, improper intrusion into citizens' “persons, houses, papers and effects”, and, in the case of the FISA courts permitting the wire taps and investigation of the Trump campaign, government interference into a democratic election.

Other rights guaranteed in the Bill of Rights are also threatened by our state and federal governments. The right to free speech is under siege at many colleges, often state funded colleges or private colleges that accept public funds. At many of these institutions, “hate speech” is not allowed. Often that term is arbitrary and capricious. The hate speech definition changes from college to college and from quarter to quarter. A college or university should allow, debate and discuss all speech. Other institutes of so called higher learning have free speech zones where controversial subjects can be discussed. Apparently, those subjects can't be argued outside those zones.

In Oregon and Colorado, government appointed committees are impinging on the freedom of religion by suing bakers and florists who refuse to provide cakes or flowers for gay marriages because it violates their religious beliefs that marriage is only between a man and a women. These government organizations sue these religious people for violating the gay couples “right” to mandate their anti-religious views on religious peoples by forcing them to make cakes or provide flowers to ceremonies that violate their deeply held beliefs. The legal costs and fines imposed to defend oneself against these government charges can literally force people to either violate their religion or go out of business.

The Second Amendment right to keep and bear arms has been under constant attack for decades. If not for the NRA, that right might already be so diluted as to be useless. Only the decisions by strict Constitutionalist judges has protected it so far in the recent past.

The governments, federal, state and local, are the biggest threats to all of our freedoms. Our best defense against an overbearing, leviathan big government eroding, diluting or erasing our rights is the appointment of judges, at all levels, who respect our Constitution and conform their decisions to its original intent.