LISTEN NOW… From surveillance to right to know requests, a lot of important issues are currently in the courts – and not all the news is good. Get the inside scoop with your hosts on this week’s episode of Told You So! LISTEN NOW…
This week, we fill you in on egregious violations of your Right-to-Know by discussing three current cases in front of the NH Supreme Court (read more here), how use of force compares between law enforcement on the streets of America and soldiers in combat zones (the rules of engagement in war zones are stricter! Wut!?!), the City’s police surveillance cameras are coming, and more!
As many of you know, the ACLU-NH has been fighting on my behalf to try to stop permanent police surveillance cameras from being installed in downtown Manchester. Yesterday, I received a court order denying our request for declaratory and injunctive relief, which in plain English means: the City won this round, the police will likely put up their cameras, our rights will continue to be eroded and disregarded with the full authorization of the Courts, and, apparently, we should just accept the stripping away of more and more of our 4th Amendment rights.
The Court said:
It could be argued that the City’s planned use will enable the government to violate the statute. However, simply because footage generated by the cameras could be used to violate the law does not mean the installation or use of the cameras itself violated the law…
The Court cannot find as a matter of law that the planned use of the surveillance cameras will violate RSA 236:130 [Highway Surveillance Prohibited]. Instead, the Court can only speculate that, once the cameras are installed, a government employee reviewing the footage will be capable of engaging in additional conduct that will violate the statute. Accordingly, plaintiff’s motion for summary judgement is denied.
Neal Kurk, et al vs. City of Manchester Docket No. 216-2019-CV-00501
By the Court’s logic, every single current pre-crime statute should be invalidated. You know, the ones where they say you MIGHT do something bad in the future, like crash your car if you’ve been drinking, so we will punish you right NOW, even though you didn’t actually do the thing we’re trying to prevent… Yet. (Or at all.)
The Court also failed to fully consider the legislative history, which you may recall, included this testimony from Dpt. of Safety Assistant Commissioner, Earl Sweeney in 2006, that the law would ban a police department from “setting up cameras to monitor, for example, the downtown business district to detect or deter burglaries, vandalism, drug dealing,” and, “Some police departments set up cameras to monitor downtown businesses… we do not believe that this usage would be allowed in NH without specific legislation at a future time legalizing it.”
Given this, it is safe to say we should no longer rely on the truthfulness of testimony given by government agents during the legislative process. Along the same vein, we should also not trust the MPD’s contention that they will not use facial recognition software or license plate scanners. I am willing to bet any comers they will secretly start using this technology in the future, and if the cameras go up, I encourage anyone who is in a vehicle and issued a citation or arrested in the vicinity of the cameras on Elm Street, to contact me.
While this case revolved around a narrow point of law relating to a specific statute, 82% of Granite Staters voted last year to increase our privacy rights, which tells me this matter isn’t over by a long shot.
Right of Privacy: An individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.
Article 2-b, New Hampshire Constitution, December 5, 2018
I’ll conclude with the following: If you believe government can solve problems by restricting more and more of our rights and making us less free in the name of “security,” why do all stories set in the future revolve around people fighting their dystopian overlords? If the future is so bright in this Brave New World, where are the depictions of their promised land? Where is this awesome future society where, by “giving up liberty for security,” things turn out to be oh-so great for us plebs?
I’ve said it before and I will say it again: When you watch futuristic movies, who are you rooting for? In the Matrix, are you rooting for Neo or Agent Smith? In the Hunger Games, Team Katniss, or District 1 of the Capitol? Because, right now, if you aren’t on my side, you are rooting for tyranny, and it is NOT going to end well. Free people move freely. Free people certainly move freely without being surveilled by a group of people who claim to work for us while also keeping a secret list of their worst people from us.
Want to learn more? Read the backstory here, here, here, and here. Listen to my podcasts on this topic, Living with Lockdowns, Big Brother is Watching, and You Don’t Need to See This List of Bad Cops, Citizen.
Art.] 8. [Accountability of Magistrates and Officers; Public’s Right to Know.] All power residing originally in, and being derived from, the people, all the magistrates and officers of government are their substitutes and agents, and at all times accountable to them. Government, therefore, should be open, accessible, accountable and responsive. To that end, the public’s right of access to governmental proceedings and records shall not be unreasonably restricted. The public also has a right to an orderly, lawful, and accountable government. Therefore, any individual taxpayer eligible to vote in the State, shall have standing to petition the Superior Court to declare whether the State or political subdivision in which the taxpayer resides has spent, or has approved spending, public funds in violation of a law, ordinance, or constitutional provision. In such a case, the taxpayer shall not have to demonstrate that his or her personal rights were impaired or prejudiced beyond his or her status as a taxpayer. However, this right shall not apply when the challenged governmental action is the subject of a judicial or administrative decision from which there is a right of appeal by statute or otherwise by the parties to that proceeding.
June 2, 1784
Amended 1976 by providing right of access to governmental proceedings and records
Amended 2018 by providing that taxpayers have standing to bring actions against the government
Three important Right-to-Know cases were heard yesterday at the NH Supreme Court. You can read Mark Hayward of the Union Leader’s take here, Justices Review Law that Keeps Records of Official Misconduct Secret, the Monitor here, and In-Depth NH here, but basically, in all three cases, the government argues they have the right to hide personnel misconduct from the public.
They base their arguments on the 1993 case, Union Leader vs. Fenniman, which all open government proponents believe was wrongly decided, and which is now being used to shield legitimate information pertaining to government employees from the public eye. To put that in context, yesterday, the government lawyers went so far as to argue there is no public interest in knowing *who individuals* accused of misconduct are…
This is particularly galling when you consider that one of the profound challenges we face in holding public officials accountable is when, by some miracle, shady public employees are removed from one jurisdiction, they often resurface to continue their malfeasance elsewhere. How do we protect our cities, towns, and villages from these repeat offenders? How do you hold someone accountable if you don’t know who they are?
Just ask Laurie Ortolano of Nashua, who spent more than $1,000 to determine the Nashua tax assessor wasn’t doing his job. She built such a strong case that this assessor was forced to leave his position in Nashua, only to… dundundun… resurface in… Hooksett (sorry to inform you, Hooksett taxpayers). This is just one example of why knowing who the individual is, not simply hiding behind an anonymous monolithic facade called “the state,” is so important.
The world is, after all, made up of INDIVIDUALS doing good and bad things. If you work for the state, and you do bad things, you don’t get to hide behind the cloak of the state: we have a right-to-know who and what YOU are, what YOU are doing. Because, in the end, what do you think creates better incentives for better behavior over time: A system that says, “We’ll cover (and cover, and cover) for you when you do something wrong,” or a system that says, “Sunlight is the best disinfectant”?
In response to Ortolano’s experience, Democrat Representative Jan Schmidt from Nashua is proposing several amendments to the current RSA 91-A law. Schmidt and Ortolano both attended a meeting on Saturday with Right-to-Know NH, a nonpartisan coalition of open government advocates.
At this meeting, Schmidt claimed her proposed amendments will help citizens like Ortolano. Schmidt is either woefully misinformed, or lying, because it is simply impossible to interpret her proposed amendments as favorable to open and transparent government. In fact, one proposed amendment strikes a roll call requirement (our only way to know who voted for what), and another adds thousands of dollars in taxpayer fees to the RTK process.
“We are totally opposed to it,” David Saad, president of RTKNH, said on Wednesday. “Part of our mission is to have more open and transparent government. What we have been fighting for since 2013 is to make minor changes to the law so that everyone has a right to inspect records at no cost. “Once you create a financial barrier to an individual to view public records and charge them in any way to view those records, you are creating a financial barrier which is going to be used maliciously by some public officials to thwart the public’s right to know,” said Saad. Schmidt did not return phone calls and emails seeking comment on the bill.
Union Leader
The main thrust of questioning by the Justices yesterday had to do with Fenniman, with most of the judges asking what would happen if this decision was overruled. As a lawyer, I empathize when judges have to overrule a previous decision, but just as you need sunlight for disinfectant, you need to be open to the fact that sometimes, you get it wrong, suck it up, and do the right thing. And with Fenniman, it is crystal clear that the unintended and damaging consequences to government accountability and transparency far outweigh sticking to stare decisis.
“We believe that this position is deeply harmful to government accountability and is inconsistent with Chapter 91-A’s presumption in favor of disclosure,” Bissonnette said. “It’s crystallized to me when I think about the examples of documents that would be categorically excluded under Fenniman. Number one, an internal report documenting a school district’s potential failures in investigating sexual misconduct against students by a teacher.”
From Concord Monitor
The Court’s best bet for a good outcome for the people of New Hampshire is to overturn Fenniman and apply a balancing act when considering what information, if any, should be redacted from public record requests. As Greg Sullivan, attorney for the Union Leader, who also argued Fenniman in 1993, said yesterday to laughs all round: “I’m here to blame the court… Fenniman… was wrong then. It’s wrong now.”
The Justices have an opportunity to right a serious wrong. I hope they have the courage to do what’s right for our Right-to-Know, and stand with the people for open, accessible, accountable and responsive government.
LISTEN NOW… Twitter is banning political ads, Facebook will drop the ban hammer on a whim, and YouTube has been booting creators left and right in pursuit of a less volatile political brew – but does that mean that free speech is under fire? Dive into the complexities of deplatforming and what it means for the First Amendment with your hosts on this week’s Told You So! LISTEN NOW…
A New Hampshire Democrat Senator recently penned an opinion piece entitled, “Why I’m Not Libertarian.” Since NO ONE would mistake Jeanne Dietsch’s positions, like her desire to implement an income tax or her anti-freedom voting record, for anything other than socialism, it seems like an odd title for an essay, but, then again, maybe she knows libertarianism, the quaint notion that you own yourself, is a hot topic and she wanted to get in on the action?!? For me, every media mention of “libertarianism” is a win, even when someone gets it as wrong as she does. To set the record straight, here are a few rebuttals from people who actually understand what libertarianism is…
…libertarians would never force their will upon others. That would be aggression. I can’t speak for every libertarian, big or small L, but I can say that the principle of non-aggression extends to the limits of the Government. For if I can not use force to extort another, the Government shall not be able to either.
Chris Maidment for Granite Grok
Foremost, it means a limited government. That is not the same as no government. I fully support a smaller government. However, there are many appropriate areas for the government to be involved in. The first might be to protect property rights. Of those property rights, I should own my own body. Slavery, is the complete opposite of a libertarian government…
Dan Hynes for Granite Grok
Dietsch is correct on one point: “Is government always done right? Of course not.” Lets start to right our wrongs, and vote for a smaller government senator, and not a socialist nanny. That’s why I’m not a socialist.
Today’s episode is a feisty one! I call out the Union Leader for their lack of leadership on government- and police accountability issues, we recap the situation one Nashua taxpayer finds herself in after filing Right-to-Know requests and then being issued a “verbal restraining order” by police for her efforts, why “free staters” are just like everyone else (but better :P), why a “ski tax” is a terrible idea, and more!
Dear Editor,
I wrote a snarky response to today’s negative Union Leader editorials calling out “free staters.” I’ll leave it below for you to read, but it occurs to me, I really want the take-away to be different: I want you to acknowledge and understand that “free staters,” people committed to the non-aggression principle and who consistently apply it to all people, including law enforcement, are not the enemy.
The enemies of freedom are the people who are hurting our fellow human beings in ways that would be illegal for any of us to do, and they are getting away with this state-sanctioned harm under the color of the “law,” and under the protection from newspapers like yours, and people like you.
The time has come to understand there is morality and there is legality, and we now live in a system where government officials are doing bad things to people and when we complain, they either punish the people who complain, or they rewrite the laws to make the bad behavior “legal.” It is not right to harm peaceful people for personal behavior. It is not moral to harm peaceful people for personal behavior. I will NEVER stop fighting to end the corruption and perversion of how life is supposed to be for free people living in a free society.
Giving you the benefit of the doubt, I imagine you must be suffering from some confusion in trying to make sense of this topsy-turvy world. You *want* the police to be the good guys… but they are not. They haven’t been for a long time, and I don’t know how better to convince you than your own lawsuit in which they are trying to KEEP A LIST OF BAD COPS SECRET FROM YOUR NEWSPAPER AND THE PUBLIC. In legalese, that’s called de facto proof of malfeasance.
Dude, wake up and smell the tyranny. Don’t pick the wrong side and lean into the police state just because you don’t like our tactics–what other choice do we have? I know I am going to keep on fighting to keep the “Live free or die” state free, and one day, I hope you will have the decency to thank me.
Yours sincerely,
Carla Gericke
***
This article, “City settles with Free Stater arrested at DWI checkpoint,” started the latest discussion.
***
How can you support police who knowingly break the law, who do immoral things like assault children from behind and then find themselves not responsible because they investigated themselves and found themselves not wanting, who institute illegal neighborhood-wide lockdowns, who point loaded rifles at West Side moms’ heads, who encrypt public communications paid for by us, who actively campaign to hide a list of bad cops from the public, and who have had to hire a Minister of Propaganda to “spin” (their word) their actions? I’m not even going to mention the state sanctioned beat-downs and killings, the car crashes, the spousal abuse, the asset forfeiture, the qualified immunity, or the drug and alcohol abuse for which no one is held responsible, or which usually results in a nice comfy lifetime retirement payout while the rest of us can’t afford to ever stop working in order to pay for this Big Gov, Big Bro system we are suffering under.
Today’s Sunday paper has not one, but two editorials mentioning “Free Staters.” An uncharitable but accurate view is the newspaper is desperate for traffic and they surely need eyeballs now that Granite Grok is smoking them ito readership, and that the editor knows mentioning “free staters” is a reliable source of such traffic because, it’s true, liberty activists do like to read and share articles about corrupt cops and fake news, and here we have a twofer!
In “Free Stater follies: Interfering with DWI stops isn’t funny,” the editor exposes his Stockholm Syndrome by both complaining about activists who hold public officials accountable, AND complaining when City Solicitor Rice isn’t forthcoming enough for the editor’s taste. Know what’s actually not funny? Police violating our rights and the newspaper of record picking their side… Every. Damn. Time. Until you stop protecting LEOs who are actively harming people and hiding the truth, I hate to break it to you, but that bad taste in your mouth isn’t going to go away.
Let’s break down the editor’s contentions:
- “We hold no brief for the self-styled ‘Free State’ activists who enjoy getting in the face of law-enforcement officers just to get in the face of law-enforcement officers.” Wow. Collectivize much? What proof is offered to support ascribing collective intentions to a whole group of people? As someone who has attended several DWI checkpoints over the years, and who has been arrested and charged with felony wiretapping for filming police officers in public, I can tell you, my intentions are never “just to get in the face of law-enforcement.” I bet you law enforcement told you that, and like a good NewsSpeak Editor, you repeated the lie.
In my landmark First Circuit case in which I prevailed and in which the judge said the officers could not hide behind qualified immunity (that, Dear Editor, means I won because they were BREAKING THE LAW AND THEY KNEW IT AT THE TIME), I was more than 30 feet away from the officers, behind a white picket fence. How is that “getting in the face” of anyone? Many Free State activists, myself included, are on the record and outspoken proponents of NOT interfering in any manner, but simply encouraging activists to record and witness what is happening. You know, to do the job the press was supposed to do… - “In an age when drunk and drugged driving appears to be on the upswing, all legitimate enforcement efforts ought to be employed. A DWI roadblock, when duly publicized in advance, is one such tool.” A cursory search online disproves the “upswing” statement, and I suggest you read the 4th Amendment, and then come show me where it states suspicion-less roadblocks are permitted in a free society.
- “When people interfere with such a check, as they have done in Manchester by warning drivers to turn around or to take another route, they are not doing the public any favors.” For the hundreds of people who are not guilty of anything other than driving down the road, those people in “public” who honk, and wave, and yell “thank you!” seem to disagree about not doing “the public any favors.” Maybe you don’t really know who the public is anymore? Maybe you are not actually representing the “public,” but rather are just a police state apologist?
- “Nor are the taxpayers well-served when they have to pay to settle lawsuits because an officer made the wrong decision by arresting one of these yahoos.” The way to avoid lawsuit settlements is to ensure LEOs are properly trained and doing their jobs correctly. Since the law about recording officers is settled and has been since 2007 (see Glik), I guess they behave this way because they know they can get away with it, especially when the newspaper of record seems to imply that Constitutional protections and the First Amendment don’t apply to “yahoos.” To whom should the Constitution not apply next…?
- “As tough as it may be at times, the police need to react as coolly and calmly as possible in these situations. They will enjoy public support, especially if they and the city are transparent in explaining their policies and procedures.” I agree, but I also doubt more transparency will be forthcoming. The trend is towards more secrecy for our law enforcement and government officials, and less privacy for us mere citizens. We certainly won’t see more transparency and accountability as long as the Union Leader continues to glibly champion for and protect bad behavior. In fact, one might argue editorials like today’s embolden bad actors…
The second editorial is even more daft and insulting, “Bear with us on this,” in which the editor concludes: “It’s just lucky for the police that there were no Free Staters in the area to hold up signs telling residents to bear false witness to the fuzz if asked about the bear’s whereabouts.” Honestly, I don’t even know what to say about this nonsensical statement except maybe lay off the punny sauce, if you can grin and bear it?!? It does remind me of the old saying that “people will tell you exactly who they are if you are willing to listen.” From today’s editorial statements, I heard loud and clear what kind of people the editors of the Union Leader are. I see you, and I find you wanting.
Want to learn more about suspicionless checkpoints? Here’s a first person account I wrote after attending a DWI checkpoint rally in Manchester in 2014.
This week, we discuss how Democrats, led by Lou D’Allesandro, tabled $46 MILLION bucks in federal grant money for NH charter schools out of… Why? What could possibly motivate them to do such a thing? Watch to find out what we think, and repeat after me: “My Education, my choice!”
NPR has an article out today: “Experts worry active shooter drills in schools can be traumatic for students.” As someone who has first hand experience under a police state regime that used similar tactics against its children in schools, let me tell you, Yes, it IS traumatic, and parents, children, and teachers should DEMAND that these drills stop IMMEDIATELY, or you should withdraw your children from these schools, and support charter schools, homeschool, or un-school.
Despite high-profile media coverage, school shootings with multiple victims are still rare. The overall number of students killed in shootings at schools is down from the early 1990s to about 0.15 per million in 2014-2015, according to researchers at Northeastern University. One Harvard instructor estimated the likelihood of a public school student being killed by a gun in school at about 1 in 614 million.
Below is my article from 2016 which first appeared on Carla4NHSenate.com. To Granite Staters, I implore you to stop voting for candidates, like Lou D’Allesandro, who support and condone this militarized behavior in our state. Vote these bums out!
02 Aug 2016
War is coming home
Having grown up in South Africa under apartheid, I am no stranger to the dangers of police militarization. In high school in the 80s, I attended an all-girls boarding school in Pretoria. The police would frequently come to our school to warn us “the terrorists are coming.” The “terrorists” were anyone the regime did not like.
One day, unbeknownst to us, the police detonated smoke bombs in our school to simulate a terror attack. We girls truly believed we were under fire. I was eleven or twelve, a volunteer school fire-fighter, and I leopard-crawled upstairs–fighting the smoke, tears and snot streaming down my face, bruises forming on my elbows and knees–to try to save my friends. Needless to say, when I learned the “attack” that terrified us so was orchestrated BY the police, my views about “good guys” and “bad guys” started to evolve.
America is marching lockstep towards a bona fide police state. This is not hyperbole. America incarcerates the most people on the planet. Today, police commit 1 out of 12 of all killings in the United States. In 2015, 41 officers were slain in the line of duty, while police killed 1,207 Americans. You are 8 times (some say 55 times) more likely to die at the hands of the police than a terrorist. Here in Manchester, an entire neighborhood was recently placed under lockdown, a daytime curfew, something you would never expect to see in a free society.
If you believe police militarization is necessary to protect you from the virtually nonexistent threat of terrorism, understand this fear mongering is being pushed on you by politicians and news media outlets who stand to gain from your fear. Scared people are controllable people.
Your children are being trained in school, like I was, to fear. In Manchester in May [2016], schools were locked down 11 times in 3 weeks. Active shooter drills with “simulated injuries” that “may be visible on volunteer participants” take place in New Hampshire routinely, in hospitals, schools, and elsewhere. In other parts of the country, things are worse, e.g. the CIA forgot a bomb on a school bus after a drill. Do you want this to happen here?
And while you are being scared into submission, the police are being armed and trained to see you as the enemy. The police are being given more and more military grade equipment, funded mostly with federal grants, paid for by YOU, the taxpayer. You are literally paying for your own enslavement.
In 2013, while I was president of the FSP, the then police chief of Concord falsely claimed participants of my organization were a “domestic terrorist threat” in a federal grant application to get a $260,000 BEARCAT–a cuddly name for a Ballistic Engineered Armored Response Counter Attack Truck. The kind of vehicle you see in a war zone, not in a town with 2 homicides per decade. If YOU lie on a government form, you can be fined and/or imprisoned. When government officials break the law, they get off scot-free because “accidents happen,” or, when the crimes get Too Big to Jail, they run for president!
Long story short (you can read more here, here, here, and here, which includes links to media coverage), despite more than 1,500 paper petition signatures garnered from Concord residents, the town voted to accept the BEARCAT. The city council flat-out ignored their constituents, siding with the police over the people, something we see all too often in New Hampshire. The police chief kinda, sorta apologized for demonizing peaceful, limited government proponents, and quietly stepped down a few months later.
Even if you think BEARCATs proliferating across the state isn’t a big deal, what about the increasing military tactics being used on our streets, or all the rifles, scopes, and other tactical gear local police are being armed with, even in places like little ole Laconia? Don’t take my word for it, watch what this retired Marine colonel has to say about what is happening:
“We are building a domestic military, because it is unlawful or unconstitutional to use American troops on American soil, so what we are doing is building a military… Homeland Security is pre-staging gear, equipment… What they are trying to do is use standardized vehicles, standardized equipment… Let’s not kid ourselves, what we are doing is building a domestic army because the government is afraid of its own citizens.”
Why? Why are they afraid? Could it be because we are over-taxed, over-policed, and over-incarcerated? That 79.8% of people disapprove of the job congress is doing? Could it be because there was no real economic recovery after the 2000 and 2008 crashes caused by the federal government’s inflationary policies and money printing? Could it be they are worried about the ever-growing $19 TRILLION dollars of debt, a number so unfathomable people gloss over it, unaware this astronomical number excludes unfunded liabilities like social security and pensions?
Perhaps it is the fact that for the first time, thanks to the internet and social media, we can discover the truth for ourselves, and communicate directly with thousands of other people across the state, country, and globe? That they realize they no longer control the narrative, that, as Hillary Clinton put it in 2011 in a bid for more funding for the state department’s propaganda machine: “We are in an information war and we are losing that war.”
Sadly, America loves war. Besides the foreign interventions, at home we have the war on drugs, the war on poverty, the war on terror. Frankly, none of these “wars” work out as intended, and all of us end up as collateral damage to failed DC policies.
It is imperative that we reverse the militarization of police here in the Granite State.
As your senator, I will not support legislation to increase police militarization and will actively work to reverse this trend. We also need more accountability and transparency regarding these programs, especially those being pushed locally by the federal government. We need more reporting on what equipment is available, how it is being used, and what training is taking place.
Remember, when all one has is a hammer, eventually everything looks like a nail. As I said in this speech during the pro-police accountability rally I organized as a West Manchester homeowner after the lockdown, YOU are the nail.
If we don’t end this trend towards police militarization, one day soon you will find yourself living under tyranny and wonder how we got there. Not on my watch!
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