Profiling is a Slippery Slope

Wanting to reduce crime, and seeking justice are noble intentions. Using profiling policies which violate people’s civil liberties is not.

October 14, 2019

By: Bobby Casey, Managing Director GWP


Public policies which try to capture bad actors always seem to sweep up innocent people in the process.

It’s not the guilty criminal I’m worried about, but the individuals who happen to be at the wrong place at the wrong time, or “meet the description”. Couple that with this innate presumption of guilt on the part of state agents and you have a recipe for disaster.

The discussion of “Red Flag Laws” has surfaced to get ahead of gun violence. It’s the equivalent of “see something says something” after 9/11 when everyone was suspicious of terrorist activity.

This isn’t new. Woodrow Wilson had neighbors reporting neighbors over subversion. Senator Joseph McCarthy followed a similar tradition of reporting those who were “dangerous to the welfare of the nation” with his infamous blacklist.

Red Flag laws are not new policy. They are old tyrannical hat, which slithers its way into public approval when people are scared enough.

Red Flag is a euphemism for profiling. It’s used for gun control purposes, but the net result is the same as any other profiling policy: civil liberties are violated first, innocence or guilt can be proven later.

The process is simple: you convince the majority that certain minorities deserve to be targeted.

In the case of taxes, target the rich.

In the case of travel, target Muslims.

In the case of migration, target Latinos.

In the case of violence, target people who own weapons.

There’s nothing inherent about any of those groups that suggests everyone in them deserves to be suspected of criminality, much less have their rights suspended. I think most people know this, but since it doesn’t affect them, they keep their heads down.

I have a personal interest in motorcycle riding. I appreciate nice bikes, and ride myself from time to time. While no longer federally funded, New York state still has MOCs (motorcycle only checkpoints). The state of Utah has a murky track record of profiling motorcycle riders as well.

It doesn’t seem like much, and if you don’t ride a motorcycle you might not even give it a second thought. But biker clubs in some states are flagged as threat groups.

This happened to a group of motorcyclists in Texas. An entire group of bikers who were headed up to a birthday celebration were pulled over because one of them appeared to make wide turn at an intersection earlier.

“They were detained for half an hour, all their bodies were searched, and photos were taken of them, their bikes, and their vests, American flags, and other patches to be entered into the ‘Gang Database.'”

This sort of harassment is something we hear about happening in inner cities with stop-and-frisk and broken window laws. Probable cause is becoming a very loose term, and that doesn’t bode well for civil liberties.

What can this sort of thing lead to?

Earlier this year, a federal judge found the entire Mongol Nation guilty of two counts of RICO violations. Judge David Carter of California fined the club $500,000 to be paid out in monthly installments of $8,475. The entire membership of the Mongol Nation was also placed under federal probation for five years.

The membership is certainly large enough to pay that bill, but that’s not the point.

Independent of the practical ability to pay massive fines, consider that these fines are being collected from individuals that did not commit any of the crimes the Mongol Nation was found guilty of. Many of the crimes used to establish a RICO violation go back more than a decade. Those culpable individuals have already been sentenced and many have already paid their debt to society.

Innocent people are footing this tab. But let’s also consider the implications of federal probation. Someone on federal probation is always prohibited from possessing and carrying firearms and has no defense against search and seizure.

While it might be seen as a first amendment win that the judge didn’t also come after their patches and insignia, one has to wonder if that was just to make members more easily identifiable?

This sort of group culpability and group guilt, especially for acts committed and prosecuted decades ago, is dangerous. I’m not saying guilty individuals are not associated with the Mongol Nation. But they’ve been called out, charged, and prosecuted. In some cases even already served their sentence.

Either they are square with the house, or there’s a new bonus round of sentencing waiting for them when they get out.

Those who had nothing to do with these crimes are likewise getting railroaded.

This is not a sympathy plea for the Mongol Nation. This is a warning to people who associate with groups of any sort. A basic human right is the freedom to associate. Association unto itself is not a crime.

It’s not just happening to a fringe biker club. It can happen any time in Alabama, and a dozen other states. Alabama has an “accomplice law” that states if someone dies during the commissioning of a felony, the accomplices in that felony can be charged with murder.

Lakeith Smith was one of 5 individuals committing a burglary. A crime for which he is serving 35 years, and for which there is no dispute.

A’Donte Washington was another of the burglars, who was shot by police and died. There’s no dispute there.

Smith was unarmed and did not even see Washington get shot, but Smith will be taking the fall for Washington’s murder nonetheless. Here’s the catch: Washington’s death was ruled a “justifiable homicide” and did not meet the burden of murder, and Smith didn’t shoot him.

This is guilt by association. Worse, it’s criminalization of association. Justice is a very precise thing sought for very precise reasons. Policies like these muddy those waters. There’s no justice in charging Lakeith Smith for murder. No public good has been served.

If that were true, then the lowly tellers of Deutsche Bank should’ve been held liable for any number of the bank’s acts of impropriety.

Assembly line workers of the UAW should be held liable for the same embezzlement charges their leadership is facing.

This brings me back to the Red Flag laws. Profiling for any reason, be it by association, the vehicles they drive, the clothes they wear, or any other superficial standard, is a slippery slope.

Relying on the word of random people to determine if your right to bear arms should be suspended is hardly due process. How is that any different from proving your house is innocent of being involved in drug dealing?

Several stories of people calling the police on others, even out of genuine concern, has resulted in some nasty outcomes. The most recent being that of 28 year old Atatiana Jefferson. A neighbor called the police because they noticed her door was open. She was fatally shot through her window at 2:30am on Saturday, October 12 as a result.

Stirring up the fear in people, and then encouraging them to call the police on their neighbors has a horrible history, with even worse implication for people’s civil liberties.

I get that everyone has their vulnerabilities, where they can accept preemptive action against others. But to value liberty means not putting people’s rights on the chopping block because of superficial reasons or emotionally charged beliefs.

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