LegitSlater: Know Then Assert Your Rights


Last week, I highlighted several instances of actual or potential integrity concerns within North Dakota Law Enforcement; one of which was the concern over a ND Bureau of Criminal Investigation (BCI) Special Agent deleting cell phone pictures taken by a citizen. As Rob highlighted last Friday, an investigation did find that the BCI agent mislead the citizen. She had every right to take (and keep) these pictures so long as she did not impede law enforcement in carrying out their duties. The BCI agent had his motivations, and I can understand them (he probably really felt his cover may be blown), but shouldn’t he have taken more precautions to prevent that?

The implication by the agent that taking such photographs was a felony is outright concerning from the simple standpoint that BCI is supposed to represent the top tier of law enforcement in this state — they more than any other sworn peace officers should be expected to know the law inside and out, especially as it pertains to the recording of their activities by citizens. The common citizen would want to give this agent the benefit of the doubt — maybe he just forgot… or something. One problem — the common citizen doesn’t always understand law enforcement is allowed to lie (or at least be selective in telling the truth) in the course of carrying out their duties. If you don’t believe me, watch the below entertaining and informative video of a law school lecture, featuring a seasoned criminal lawyer and former police officer turned law school student, on this topic:

Is the use of deception by law enforcement always a bad thing? Strong arguments can be made that the answer is no, and I would tend to agree with this up to the point where such deception violates a citizens rights. The problem comes within a the following quandary — (1) most citizens are law abiding yet don’t understand their rights, yet (2) they assume law enforcement knows they are law abiding, and thus there can’t any harm in talking to them, but (3) what they don’t always understand is law enforcement is primarily concerned with building A case to hand off to the prosecutors — versus ensuring they are building a case against the right individual or for the right reasons.

In short, they are counting on the common citizen not knowing their rights, or even if they do — waiving them (on purpose or inadvertently) because “they have nothing to hide”. When you couple that with our natural trust of law enforcement that everything they contend is true, and everything they ask of you must be complied with, you have a perfect storm which can generate incidents like what happened regarding the cell phone pictures in Forbes, ND between the BCI agent and citizen. If the citizen in question had asserted her rights in this matter, this would never have been an issue for her or the cop. But, one can only assert what they know, and clearly this citizen didn’t know her rights to begin with or she would never have consented to a search of her pictures (and handing over the phone, at the officers request — not order — opened that door).

Because of this, I have a hard time finding sympathy for this citizen, even though I don’t condone the methods used by the BCI agent to dispose of the pictures he was concerned with. That is simply because with any right comes responsibility, and the first responsibility regarding rights is to know them — followed then by asserting them. A big part of this may be due to a waning emphasis on the teaching of civics and the Constitution in our education system, but the primary reason is likely that the common citizen is too lazy to care about learning their rights — except when it is too late, and the lessons become retrospective versus proactive in nature.

Knowing and asserting our rights is an essential activity for all citizens, especially for the law abiding ones. It essential to the care and maintenance of a society rooted in liberty, and as such a life-long and ongoing study of the Constitution and the rights documented within is time well spent by all (not just law school students and police officers). The case of the BCI agent deleting cell phone pictures is a perfect example of what happens when a citizen doesn’t know then assert their rights.

Over the course of the next several weeks worth of columns (not necessarily consecutively), I’ll do my part to raise awareness of individual rights, but every common citizen needs to take responsibility to learn them for themselves.