Chapter Eight: Civil Liberties

Introduction
What Are Civil Liberties?
Distinguishing between Civil Liberties and Civil Rights
Civil Liberties and The Bill of Rights
The Reconstruction Amendments
Due Process of Law
Equal Protection
Selective Incorporation
Everyday Protection from the Power of Government
What to Do When Encountering the Police?
Summary

Introduction

Since its foundation the United States has become significantly more diverse both in terms of demographics and participation in the political process. As the country grows more diverse and inclusive, the U.S. government seeks to exert more authorly over the lives of the governed thereby controlling its population. Civil Liberties, which are protections from the government enshrined in the constitution, have become contested spaces as calls for “security” and “law and order” encroach on foundational freedoms.

It is crucial to understand how the U.S. government encroaches into the lives of individuals and communities. Which groups are targeted for encroachment? Which groups are not? How does the average citizen protect himself/herself from the powers of government?

For decades, U.S. citizens have defended themselves from the curbing of their rights by their government through their use of the United States Constitution. When we talk about the ways in which Americans use the Constitution to protect themselves from the encroachment of government, we are talking about “Civil Liberties.”

What are Civil Liberties?

Before we go any further let’s define what we mean when we say the words, “Civil Liberties.”

Civil Liberties concern the basic rights and freedoms that are either explicitly identified in the Bill of Rights and the U.S. Constitution, or interpreted, or inferred through the years by legislatures or the courts. Civil Liberties guarantee the rights to freedom of thought, expression and action (with some exceptions) and protect those rights from government interference or restrictions.

Most Americans do not realize that many of the founders of the United States did not trust the powers of government. Remember that they (the founders) had just broken away from a powerful Monarchy and did not want to make “the state” too powerful as they created the newly freed republic. The U.S. Constitution, and more specifically the Bill of Rights, has protections “built in” to protect Americans from the overreaching powers of government.

Civil Liberties violations occur when a government agency, agent, or actor overreach, or oversteps their authority, acting in an intrusive manner and violating the rights of individuals or communities.

Civil Liberties typically include basic rights and freedoms that are guaranteed by law (either explicitly identified in law or in the U.S. Constitution). These are freedoms that give individuals limited protection from the government.

Civil Liberties include:

The right to free speech (First Amendment);
The right to privacy (First Amendment, Fourth Amendment, Fifth Amendment, Ninth Amendment);
The right to remain silent in a police interrogation (Fifth Amendment);
The right against unreasonable search of one’s home (Fourth Amendment);
The right to a court trial (Sixth Amendment, Seventh Amendment);
The right to marry
The right to vote (Fifteenth Amendment, Seventeenth Amendment, Nineteenth Amendment, Twenty-Fourth Amendment, Twenty-Sixth Amendment) (Kernell & Jacobson, 2020)

Distinguishing between Civil Liberties and Civil Rights

To distinguish between civil liberties and civil rights it is important to consider the following:

What right is affected? (this would involve civil liberties)

and

Whose right is affected? (this would involve civil rights) (Kernell & Jacobson, 2020)

For example,

The right to marry is a civil liberty.
Gay marriage is a civil right.

If a couple, either same sex (man-man, or woman-woman) or opposite sex (man-woman) is denied a marriage by the county clerk because the county clerk does not want to issue licenses to anyone, then this would be a civil liberties violation (because everyone’s right to marry is being affected because of the actions of the county clerk). The county clerk has overreached his or her authority. (Kernell & Jacobson, 2020)

However, if the county clerk denies a marriage license only to LGBTQI couples, then this is a civil rights violation. The LGBTQI couple is the who, whose rights are being specifically affected. Heterosexual couples would still be able to get a marriage license, resulting in unequal treatment of the two groups. (Kernell & Jacobson, 2020)

Therefore, a “civil rights violation” occurs when individuals who are, or groups that are equally situated are treated differently or unequally by the government. Civil rights violations relate to unequal treatment by the government. More will be covered in Chapter 9 when we specifically look at civil rights.

Civil Liberties and The Bill of Rights

As discussed in Chapter One, the Bill of Rights consists of the first ten Amendments to the U.S. Constitution. These Amendments were added in 1791 and were designed to protect Americans from government overreach.

We will look at each of these amendments to see how they protect our rights from the powers of the government.

The First Amendment prevents the government from interfering with what individuals believe, what the media can publish, what we can speak or display, who we can be around, and how we protest or bring our grievances to the government. There are five separate rights that are included in the First Amendment. The government has often worked to limit the power of these civil liberties. For instance, Congress passed the Espionage and Sedition Acts (1917-1918) during World War I (1914 – 1918) to stymie anti-war and labor organizing; the Congress also declared the Communist Party illegal during the Cold War.
The Second Amendment is the right to bear arms. Attempts to limit the amount and type of civilian owned guns in the United States has repeatedly been challenged, but gun rights largely remain intact due to this Amendment. However, this has not always been true for all U.S. citizens as gun control laws often targeted African American communities attempts to arm themselves. Modern supporters of gun control seek to limit access to arms for all U.S. citizens, or at least those with a criminal record, and argue that the Second Amendment was written at a time when gun technology allowed only three to four shots per minute.
The Third Amendment prevents the government from forcing people to house U.S. soldiers. This amendment was passed in response to the British government forcing people in colonial America to open their homes to British soldiers.
The Fourth Amendment has been defined by the courts as the right to privacy. It works to prevent “unreasonable searches and seizures” by the government. This Amendment has justified the Roe v. Wade decision that legalized abortion, but as of June 2022 is no longer recognized as a protected right by the U.S. Supreme Court. Still, the Fourth Amendment has been limited by recent federal laws like The Patriot Act, which allows the government to surveil the public, often without a warrant.

Assignment: Using evidence from “Civil Liberties and the Bill of Rights” and previous chapters, as well as the relevant video, write a paragraph letter to a congressperson explaining why you think they should overturn either the Espionage and Sedition Acts, gun control laws (Racist History of Gun Control Laws and the Second Amendment) or The Patriot Act.

The Fifth Amendment lists the five separate rights that are present in criminal cases. These rights including: indictment by a grand jury; no double jeopardy; you cannot be a witness against yourself (i.e., right to remain silent); due process of law (i.e., Notice and the Opportunity to be Heard before one’s life, liberty, or property is taken away.); and the fact that the government cannot take someone’s private property for public use without fair compensation.
The Sixth Amendment includes six rights: the right to a speedy and public trial; the right to a jury trial; the right to be informed of the nature of the charges against you; the right to confront witnesses through cross examination; the right to obtain your own witnesses; and the right to a lawyer.

The Fifth and Sixth Amendments

Let’s look at civil liberties from the perspective of the Fifth and Sixth Amendments. To do that we will look at a specific United States Supreme Court case entitled Miranda v. Arizona, (1966). Ernesto Miranda was convicted on charges of kidnapping and rape. He was identified in a police lineup and questioned by the police. He confessed and then signed a written statement without first having been told that he had the right to have a lawyer present to advise him (under the Sixth Amendment) or that he had a right to remain silent (under the Fifth Amendment). Miranda’s confession was later used against him at his trial and a conviction was obtained. When Miranda’s case came before the United States Supreme Court and the Court ruled that, “detained criminal suspects, prior to police questioning, must be informed of their constitutional right against self-incrimination and the right to an attorney.” The court explained, “a defendant’s statement to authorities are inadmissible in court unless the defendant has been informed of their right to have an attorney present during questioning and an understanding that anything, they say will be held against them.” The court reasoned that these procedural safeguards were required under the United States Constitution.

The Seventh Amendment secures the right to a jury trial in a civil case. A civil case is where one citizen is suing another citizen. Under American law “corporations” are viewed as citizens.
The Eighth Amendment was designed to protect citizens from excessive bails, fines, and cruel or unusual punishments. The final clause is often interpreted as protecting U.S. citizens from being tortured by their government. Still, many argue this amendment is being violated because cash bail denies freedom to many citizens who have not been convicted of a crime but many times individuals will remain in jail simply because they cannot afford their bail. Others say solitary confinement, a widely used practice in the U.S. criminal justice system, is a form of psychological torture because human being are social individuals.
The Ninth Amendment says that even if a right is not listed in the U.S. Constitution, the people still have rights.
The Tenth Amendment lets you know that the states also have rights.

The Reconstruction Amendments

As discussed in Chapter One, the “Reconstruction Amendments”—the Thirteenth, Fourteenth, and Fifteenth Amendments—were added to the U.S. Constitution between 1865-1870 in the aftermath of the Civil War. The Reconstruction Period(1865 to 1877) involved the “rebuilding of the southern states” while securing the freedoms won for formerly enslaved Black Americans at the end of the American Civil War (1861-1865).

The Thirteenth Amendment

The Thirteenth Amendment ended slavery in the United States with a glaring exception in the case of those who had been convicted of a crime. Senator from Massachusetts, Charles Sumner wrote the original language for the 13^th Amendment in 1864. Sumner’s version read, “All persons are equal before the law, so that no person can hold another as a slave.” President Lincoln supported the amendment. However, debate raged on the language with a compromise being reached that said that one could not be a slave, unless convicted of a crime.

Thus, the final language of the 13^th Amendment now reads as follows: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.” This loophole, where slavery could be reinstated if a person was convicted of a crime, continues to be an economic boon for the U.S. prison system, where prisoners in the United States, overwhelming non-white are forced to work for little or no pay during their incarceration.

The Fourteenth Amendment

The Fourteenth Amendment guarantees birthright citizenship. This simply means that if you are born in the United States, you are a U.S. citizen. This amendment secured the status of the newly freed African Americans as U.S. citizens. The amendment states that, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Birthright citizenship has been attacked by anti-immigrant politicians, particularly in the GOP who have sought to curb the growing number of citizens born to immigrant parents.

According to the Fourteenth Amendment, a person gains U.S. citizenship by being born within the United States or being born to an American parent or parents. Even if a child is born outside of the United States, that child is still entitled to U.S. citizenship if one [or both] of the parents is an American citizen at the time of the child’s birth. Therefore, if an American gives birth in Canada, or Panama, or China, or Nigeria, the child, based on the Fourteenth Amendment, is a citizen of the United States. The child is also a “Natural Born Citizen” fulfilling one of the three requirements to become President of the United States.

The “equal protection of the laws” clause of the Fourteenth Amendment works to undo the Dred Scott decision by the U.S. Supreme Court in 1857. That court stated that African Americans were not and would not become citizens of the United States. This Amendment attempted to ensure that African Americans could not be denied equal protection under State or Federal law.

Equal Protection

Under Equal Protection, when there are two groups that are equally situated in American society then one group cannot be treated better than the other group. One group cannot be faced with systemic hardships or discrimination while the other group gets an easy ride. One group cannot be treated better or stand in a more favorable position in comparison to the other group. If this occurs then there would be a constitutional violation of the Equal Protection Clause. The group or individuals receiving the unequal treatment can challenge the constitutionality of that differentiated treatment.

Over the centuries, Black Americans have particularly endured unequal treatment by both the white majority and the United States government. For most of U.S. history Black Americans have been considered and treated as second class citizens. First being the “personal property” (the chattel) of European Americans during slavery, and then after slavery ended confined to separate accommodations and second-class citizenship in housing, travel, education, healthcare, and justice. Black Americans have faced enslavement, legal segregation, factual segregation and or outright discrimination for the entire history of the United States.

The history of Black Americans struggle is the desire to move beyond the second-class citizenship ascribed to them as a group. Black Americans have strived to use the Equal Protection Clause to gain equal rights in the United States. The United States Supreme Court’s decision in Brown v. The Board of Education of Topeka, Kansas is one of many examples of Black Americans using the Equal Protection Clause of the Fourteenth Amendment to no longer be treated as separate and less than. The Court’s decision in Brown was one way that Black Americans utilized the 14^thamendment to gain equal access to educational institutions and to move toward equal status as citizens of the United States.

The Fourteenth Amendment secured a punitive measure against the former confederate leaders saying that they could not serve in Congress. “No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military…who, having previously taken an oath…to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” After the attempt to overthrow U.S. democracy on January 6, 2021, many commentators have argued that those members of government who incited, inspired, or aided the white supremist mob that invaded the Capitol should be removed from office.

Finally, the Fourteenth Amendment also provides for both national (U.S.) citizenship and state citizenship. The first clause of the Fourteenth Amendment states, in part that, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” Thus, an individual is a citizen of the “State” where they reside. If a person is living in Florida, has property in Florida, has a bank account in Florida, has a Florida driver’s license, is registered to vote in the state of Florida, and/or plans to remain in Florida for the indefinite future, that person is considered a “citizen” of the state of Florida under the Fourteenth Amendment. Here we see that the Fourteenth Amendment literally provides for “dual citizenship.” But this dual citizenship is not with the United States and another country. This dual citizenship, under the Fourteenth Amendment, is with the United States and with the specific state where the person resides.[1]

Assignment: Today the Fourteenth Amendment is under attack by lawmakers who do not want the children of immigrants to have citizenship and by commentators concerned it could be used to remove members of congress who supported the insurrection on January 6, 2021. Using evidence from “The Fourteenth Amendment,” Citizenship Through Birth, How the Fourteenth Amendment Could Come into Play and How the Fourteenth Amendment Undermines Citizenship a paragraph write a letter to one of these politicians explaining your point of view on the 14^th amendment..

Due Process of Law

Under the American legal system, before a person’s life, liberty or property can be taken away, there must be Due Process of Law. Secured in the 5^th and 14^th Amendments, Due Process of Law requires two things to happen. First, there must be “notice.” Notice is where a person is informed that their life, or liberty, or property is going to be lost, removed, or taken away by the government. At this point the person must have also been provided with the second part of due process. Second, the person must be given “an opportunity to be heard.” The “opportunity to be heard” amounts to some kind of hearing or trial where the individual can advocate for their rights by defending and explaining why their life, or liberty, or property should not be taken away. The opportunity to be heard in the hearing, or the trial is a hallmark of American legal system. Therefore, a violation of any part of this process by the government can result in a major loss for the government and a win for the individual.

The Fifteenth Amendment

As the election season of 1870 got underway, Republicans in Congress wanted to press their advantage and not give ground to white Southern Democrats who had broken away from the United States and started the Civil War to defend slavery. By making southern African Americans eligible to vote, Republicans guaranteed their party a voting bloc in the U.S. South, correctly assuming Black Americans would support the Republicans, the party of abolition. After the Civil War white Southern Democrats sought to reestablish the structures of white domination in the U.S. South, even if the institution of slavery had been outlawed. The Republican Party, by contrast, was founded in the 1850s explicitly to end the practice of slavery. Thus, the Fifteenth Amendment gave Black males (21 years old or older) the right to vote with the understanding that Black males would overwhelmingly vote Republican.

Everyday Protection from the Powers of Government

In 1968 a case called Terry v. Ohio (Terry) reached the United States Supreme Court. The case involved whether or not the police’s “stop and frisk” practices violated the Fourth Amendment prohibition against “unreasonable searches and seizures.” The Supreme Court said in its decision in Terry that, “a police officer may stop and detain a person based on a reasonable suspicion.” The court further stated that, “if the police has a ‘reasonable suspicion’ that the person is ‘armed and dangerous’ the police may also frisk the person for weapons.”

Many states follow this decision with something that is now referred to as a “Terry Stop.” For a Terry Stop to be lawful the police must have a “reasonable suspicion that the individual has committed, is committing, or is about to commit a crime.” When a civilian finds themselves the subject of a Terry Stop the person should ask, if they are, “under arrest or are free to leave.”

Police officers and their departments will often make the distinction between someone being “detained” and someone being “arrested.”

Black’s Law Dictionary (Black’s) defines a “detention” as, “The act of keeping back or restraining or withholding, either accidentally or by design, a person or thing.” Furthermore, according to Black’s a detention, “occurs whenever the police officer either accosts [an] individual and restrains his freedom to walk away, or approaches and questions individuals or stops individuals suspected of being involved in criminal activity.” (Black’s Law Dictionary. 450 (6^th ed. 1990))

The definition of an “arrest” according to Black’s Law Dictionary is, “to deprive a person of his liberty by legal authority.” Further definition includes, “Taking, under real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge or civil demand.” (Black’s Law Dictionary. 109 – 110 (6^th ed. 1990))

In 1976 a case reached the highest court in New York State, the Court of Appeals (Court of Appeals). In this case called “People v. DeBour” (DeBour) the Court of Appeals refined Terry as applied in New York State. The Court of Appeals listed four levels of police encounters applicable in New York State. Each level specified the “permissible police conduct when confronting an individual on the street.” (DeBour)

Four Levels of Police Encounters in New York State

Level I. Objective Credible Reason

Level II. A Founded Suspicion

Level II. Reasonable Suspicion

Level IV. Probable Cause

Under Level I. Objective Credible Reason (Approach to Request Information)

DeBour reads, “An objective credible reason is virtually any reason a police officer can articulate that would lead a reasonable person to believe that his purpose in approaching an individual is not based on an illicit motive.” At this level the police officer can ask non-threating questions regarding name, address, destination and if the person is carrying something unusual the police officer can ask about it.

When an officer only has “Objective Credible Reason” to stop someone, encounters should be brief and non-threatening, absent of harassment and intimidation. The police officer can say “STOP”. The officer can approach a stopped car. The officer can touch their holster. The officer cannot request permission to search. Even if a valid consent to a requested search is granted, the fruits (evidence) of the resultant search will be suppressed. The officer cannot cause the person stopped to reasonably believe that they are suspected of a crime, no matter how calm and polite the tone of the officer’s question.

At a level one encounter the individual can walk or even run away because he does not have to respond to the officer’s questions.

Under Level II. Founded Suspicion (Common Law Right of Inquiry)

DeBour states, “If a police officer can articulate a good faith reason to believe that he suspects a particular person of criminal activity (something beyond a mere hunch or police intuition) he has a founded suspicion.” With “Founded Suspicion” the officer can ask pointed questions that would reasonably lead one to believe that he/she is suspected of a crime. The questions asked by the police can be more extended and accusatory and can focus on criminality. The Officer can request permission to search. The officer CANNOT pursue, or chase the person. The Officer CANNOT forcibly detain the person.

Under Level III. Reasonable Suspicion (Stop and if in fear of a weapon frisk)

DeBour explains, “Whenever a police officer observes unusual conduct that leads him reasonably to conclude that criminality may be afoot, he has a reasonable suspicion.” The ruling continues, “If the police have a reasonable suspicion, he may approach a person on the street or may pull a single moving car out of the flow of traffic.” Under conditions of “Reasonable Suspicion” the police officer can at this level forcibly detain. The officer can frisk for weapons if they are fearful for their own safety. The officer can pull a car out of the flow of traffic. The officer can order the defendant to lie on the ground (for good reason). The officer can handcuff the suspect (for a good reason). If a defendant attempts to flee, the officer can pursue.

Under Level IV. Probable Cause (Arrest and Full Search Incident to the Arrest)

DeBour articulates, “If a police officer has probable cause with respect to an individual, he may arrest that person on the street without an arrest warrant and he may search that person incident (after) to arrest without a search warrant.” Probable Cause is any information sufficient to warrant a person of reasonable caution to believe that the defendant has committed a crime.

These regulations, as laid down by the New York courts, are designed to prevent the government (the police is the enforcement arm of the government) for overstepping its authority and violating the liberties of New Yorkers.

What to Do When Encountering the Police?

If you are ever approached by a police officer in New York State you should ask this question: “What level of encounter is this officer?” Keep asking this question, until you get a response from the officer. If the officer says “level one.” You have the right to leave. Let the officer know that he or she said “level one” and under level one, New Your State law declares you can walk or even run away. If the officer arrests you, the officer is now breaking the law, and is in violation of New York State law and most likely the police department’s own policies. If you have recorded the officer saying level one, (and yes you can record the police in New York State) then it will not just be the police officer’s words versus your words when you go to court. You will have the recording of the officer saying “level one.” You will also have the arrest report of the officer having lied on an official document, because the officer will have to “make up” some reason for arresting you after they said level one. The officer is now in trouble.

If the officer says level two, or more specifically level three, understand that you are the “suspect” and should now be invoking your “right to remain silent under the Fifth Amendment” of the U.S. Constitution and your “right to a lawyer in the Sixth Amendment.” At this point DO NOT talk to the police. Do not answer their questions. REMAIN SILENT (this will be hard to do especially if you are being interrogated in an interrogation room). But it is only by you remaining silent until a lawyer representing you is present in that room that you can save yourself.

Also, the police can legally lie to you, so do not believe anything that the officer is telling you. They may a lie to get you to talk and as the line goes, “anything you say can and will be used against you in a court of law.” NEVER TALK TO THE POLICE WITHOUT A LAWYER. Do not believe anything that the “nice and helpful” police officer tells you. If you sign the confession or agree to talk to the police you will not be going home, at least not for the next seven to twenty years based on the “crime.”

If you are detained by a police officer you should not talk to them without a lawyer present. Below is a collection of videos that explain your rights and provide sound strategies when approached, detained, or arrested by the police.

Assignment: After watching How to Interact with Police and reading “Everyday Protections from the Government” and “What to do When Encountering the Police” imagine your friend is going to a BLM protest, but is worried that they may have an encounter with the NYPD. In a paragraph advise them on what to do if they are approached by a police officer and how to respond if they are arrested.

Summary

When Americans use the United States Constitution to protect themselves from the abuses of government or from government overreaching its authority, we are thus talking about “Civil Liberties.” The Bill of Rights which lists the first 10 amendments to the United States Constitution specifically list the rights that Americans enjoy. These are the constitutional rights that can be asserted against the government when the government or governmental officials (police officers, and others) attempt to act or go beyond their legal authority.

Other amendments were added to the U.S. Constitution after the Civil War; and the “rights and freedoms” that they provided (i.e., the ending of slavery, American citizenship, due process of law, and equal protection of law) seek to curb the abuse by government whether local, state, and federal.

This chapter also looked at police encounters and some basic ways to deal with police encounters in New York State as well as in other states.

Assignments

Using evidence from “Civil Liberties and the Bill of Rights” and previous chapters, as well as the relevant video, write a paragraph letter to a congressperson explaining why you think they should overturn EITHER the Espionage and Sedition Acts, gun control laws (Racist History of Gun Control Laws and the Second Amendment) OR The Patriot Act.
Today the Fourteenth Amendment is under attack by lawmakers who do not want the children of immigrants to have citizenship and by commentators concerned it could be used to remove members of congress who supported the insurrection on January 6, 2021. Using evidence from “The Fourteenth Amendment,” Citizenship Through Birth, How the Fourteenth Amendment Could Come into Play and How the Fourteenth Amendment Undermines Citizenship a paragraph write a letter to one of these politicians explaining your point of view on the 14^th.
After watching How to Interact with Police and reading “Everyday Protections from the Government” and “What to do When Encountering the Police” imagine your friend is going to a BLM protest, but is worried that they may have an encounter with the NYPD. In a paragraph advise them on what to do if they are approached by a police officer and how to respond if they are arrested.

Key Terms

Miranda v. Arizona
Selective Incorporation
Reconstruction Amendments
Birthright Citizenship
Due Process Clause
Equal Protection Clause
Brown v. Board of Education
Terry v. Ohio
Terry Stop
Stop and Frisk
Probable Cause
People v. DeBour
Levels of Police Encounter
Detention
Arrest

[1] The Fourteenth Amendment is part of the United States Constitution and is made applicable to the various States through a concept of “Selective Incorporation.” In other words, rights get added to the states and the states must protect those rights.

Video Resources