Christmas Wrapup

 Posted on December 24, 2010 in Uncategorized

"I can't go through because I have the equivalent of a pacemaker in me," she said.Hirschkind said because of the device in her body, she was led to a female TSA employee and three Austin police officers. She says she was told she was going to be patted down."I turned to the police officer and said, ‘I have given no due cause to give up my constitutional rights. You can wand me,'" and they said, ‘No, you have to do this,'" she said.Hirschkind agreed to the pat down, but on one condition."I told them, ‘No, I'm not going to have my breasts felt,' and she said, ‘Yes, you are,'" said Hirschkind.When Hirschkind refused, she says that "the police actually pushed me to the floor, (and) handcuffed me. I was crying by then. They drug me 25 yards across the floor in front of the whole security."

(Austin, Texas ABC station KVUE.com. Yes, in Texas the past tense of "to drag" is "drug.")

I suspect that what really happened here (criminal-defense lawyers are expert at the game of "what really happened") is not that Ms. Hirschkind was arrested for simply refusing to allow TSA to scope her or grope her. The Austin Police Department had to have a reason to arrest Ms. Hirschkind, and "refusing to be scoped or groped" is not a criminal offense in Texas. Unfortunately, there are many failure-to-respect-the-authoritah crimes they could gin up against her-including criminal trespass, disorderly conduct, resisting search, and interference with public duties-that would depend for their proof entirely on the possibly faulty memories and subjective opinions of TSA's finest. (Ms. Hirschkind, if you're reading this, please don't be surprised when the government's story is different than yours. Government agents lie in criminal prosecutions as a routine matter. Also, call me. Whatever the whole story is, I'll drive out to Travis County to defend you in a New York minute.)

Here's the TSA's take on Ms. Hirschkind's arrest: "Our officers are trained to treat all passengers with dignity and respect. Security is not optional. And if we could release the statistics-which we can't, since they're classified-you would be surprised how many 56-year-old ladies named Hirschkind have tried to blow airplanes out of the sky."

Okay, I may have added that last sentence myself. At any rate, here's a handy guide to dignity and respect, from the Visual Dictionary of TSA Newspeak:

Ms. Hirschkind, you see, declined to be either respected or doubleplusdignified. As a result (direct or indirect) she was arrested.

This (from the KVUE story) is the reaction of Gwen Washington of Killeen, Texas to Ms. Hirschkind's arrest: "I understand her side of it, and their side as well, but it is for our protection so I have no problems with it." In other words, whatever it takes.

And this is Emily Protine's reaction: "It's unfortunate that that happened and she didn't get to fly home, but it makes me feel a little safer."

I recognize that the media's man-in-the-street interviews are intended to capture the opinions of the least common denominator-people who haven't given any thought to what's actually at stake-and that ordinary folks interviewed in an airport while on the way home for Christmas are unlikely to express dangerous political views. But still: damn. When tyranny arrives (to those tempted to comment, "but tyranny is already here," I can only say, "you ain't seen nothin' yet"), it will not come marching on the hard soles of invaders, but padding on cats' paws. Like a vampire, tyranny in America will not come in uninvited, but rather welcomed by ordinary folk like Gwen Washington (willing to have Ms. Hirschkind take whatever the government wants to dish out "for our protection") and Emily Protine (only wants to "feel a little safer").

Tyranny is coming. We can't blame George W. Bush (sorry, lefties) any more than we can blame Barack Obama (sorry, righties). We can only blame ourselves. We are a nation of consumers-consumers of cheap Chinese goods, consumers of dehumanizing culture, consumers of costly and ineffective government services. As consumers, we devour what the manufacturers want to sell us-junky toys, trashy movies, high-fructose corn syrup, fraudulent political philosophies, rationalizations for surrendering our liberty-and pay dearly for the privilege. Government is testing our bounds; the freedom we will give up to (maybe) make air travel (marginally) safer, we will give up on even slighter pretexts, if slighter pretexts can be imagined.

A reader commented to me the other day that he was glad I had gotten off the topic of scope-and-grope; he thought that I had gotten off-task from the theme (the tao of criminal-defense trial lawyering) of this blog.

I fear that he missed the point of that string of posts.

Client by client, day in and day out, year after year, we criminal-defense lawyers are in the business of maximizing freedom. Freedom is our master and our product. Making two people free is better than making one person free; if we can liberate many people with a few words, that's best of all (which is why many of us teach; or blog).

What can those of us in the trenches of the criminal courthouse do to slow the approach of creeping tyranny? We can keep doing our job, surely, but isn't there something more? I don't want my grandkids, 30 years from now, asking, "when freedom died in America, why didn't you do anything?"

Within the political system, we don't have any more meaningful power than any other voters-which is to say, none at all. Something we can do, though, is teach our fellow citizens, encouraging them to close the open doors and put away the enticing bowls of milk that they have left out for tyranny. Most of the men-and-women-in-the-street won't hear us or, hearing, won't understand. But if we can get through to just a few, and if they, understanding what's at stake, prepare themselves and their families to resist, then-despite those who think that airport security is irrelevant on a blog dedicated to criminal-defense work-all of our words will have been worth writing.

To my brothers and sisters of the criminal-defense bar and blawgosphere: you've earned a day off. Take tomorrow to celebrate the birthday of a great Jewish criminal-defense lawyer. Merry Christmas. Then get back to work.

There's much to be done, for life is short and freedom fleeting.