Outpost of Freedom blog

Liberty or Laws?

“nor shall be compelled in any criminal case
to be a witness against himself”

Does the Fifth Amendment Stop at Miranda?

Gary Hunt
Outpost of Freedom
June 6, 2016

The principle element in this discussion is the Fifth Amendment to the Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

The provision that is of concern is, “No person… shall be compelled in any criminal case to be a witness against himself.”  And, we must begin by understanding that, as the Preamble to the Bill of Rights says,

The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

Clearly, the Fifth Amendment, then, is a prohibition against the government, “to prevent misconstruction or abuse of [the federal government’s] powers”

To understand the role of the Supreme Court, at least for nearly the past century, we need to review what Justice Brandeis explained in Ashwander v. Tennessee Valley Authority (1936), in which he explained the “rules” that the Court had adopted to avoid “passing upon a large part of all constitutional questions pressed upon it for decision.”  (See About Ashwander v. TVA)

The pertinent rules from that decision are:

2.  The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it… ‘It is not the habit of the court to decide questions of a constitutional nature unless necessary to a decision of the case…

3.  The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied….

4.  The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.

7.  ‘When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided…

To summarize the pertinent rules:

• The Court will not decide on the constitutionality, unless absolutely necessary – rules 2 & 4.
• When the Court does rule on the constitutionality, that ruling will be as narrow as possible – rule 3.
• The Court will, whenever possible, rule on statutory construction to avoid ruling on constitutionality – rule 7.

Now with this in mind, they won’t rule on the constitutionality, unless necessary, and if they do rule on constitutionality, they will make that ruling as narrow as possible.  We will look at a Supreme Court decision that we are all familiar with, Miranda v. Arizona (1966).

In Miranda, which requires that law enforcement officers notice the person being investigated for possible criminal activity be advised that he have the right to refuse to talk and to have an attorney present.  However, in keeping with Ashwander rule #7, the ruling deals only with those in custody.

So, the question arises, why would one’s right only apply to when one is in custody (they narrow ruling)?  If one the right to not incriminate oneself, “to be a witness against himself”, would that not apply once suspicion was raised against him, or does it only apply after he is in custody?.  Wouldn’t it really be a prohibition against government, both before and after one was in custody?

If a law enforcement office, in uniform or plain clothes, with the intent of trying to elicit a confession, or information that would incriminate someone, while in custody, was prohibited by the Fourth Amendment and confirmed by the Supreme Court, then why would we assume that that prohibition did not also extend to when one was under suspicion?  After all, when one is under suspicion, the law enforcers are just a small step away from putting someone in custody.  Why would that prohibition only come into play when the actual act of custody was implemented?  Is it possible that those who ratified the Amendment intended for that form of chicanery to be acceptable?  Or, was their intention to prohibit divisive means of acquiring incriminating evidence in apparent conflict with the wording of the Amendment?

Now, we need to visit a little historical background to carry the ramifications of the intent into an understanding of changes in practices between the Eighteenth Century and modern law enforcement, to put a proper perspective on how the intent of the Amendment is circumvented.

In the Eighteenth Century, spying, intelligence gathering, and other such undercover work was carried out in higher levels of government, only.  The consequence for being caught practicing such infamy was death.  Consequently, those willing to lay their lives on the line for the greater cause of national politics carried out such work.  The idea of spying on their own citizens was out of the question.  After all, it is the job of any decent government to protect its citizens, not to treat them as they would an enemy.  The idea that such practices could be used in the lower elements of society, in pursuit of criminals rather than state secrets or wartime intelligence, was not a practice, as honor was conscientiously upheld.  To deceive alleged criminals would be to stoop to the level of criminals. Continue reading ‘Liberty or Laws? – “nor shall be compelled in any criminal case to be a witness against himself”’ »

Mark Kessler – A Checkered Past
Part 1

Gary Hunt
Outpost of Freedom
December 8, 2014

Benedict Arnold began his military career with accolades for his ability to gather fighting men and win battles. Somewhere along the line, disenchanted with not receiving the recognition he sought, he switched sides and joined the British against the American colonists. Mark Kessler appears to have been, at least, an advocate of certain rights, though he, with other motivation, turned against American patriots.

We will follow some of his controversial career, and detail some recent events, that should be a lesson to all true patriots. There are techniques that are used to establish “credentials” (a presence), which might induce some to trust someone who is not really on their side, eventually leading to their downfall. This process is explained, rather briefly, in Vortex, though this story is far more detailed and is a real life education in that process.

According to Linkedin, Kessler was Chief of Police in Gilberton, Pennsylvania (a borough of about 1.5 square miles, population approximately 800 in 2010) from July 2000 through February 2014. As Chief, he was the only full time employee in the police department.

On Linkedin, he claims to be Founder/CEO of CSF (Constitution Security Force) from February 2013 to present (more about CSF, later). Without explanation, he claims “Reality TV” from January 2014 to present. Finally, claims to be CEO of III% BOG (Boots on Ground) from January 2014 to present. He fails to mention his work for the government, but, then, that is the purpose of this article.

A number of articles indicate that Kessler began his working career as a coal miner. Depending on sources, he became Chief of Police in Gilberton in either 1998 or 2000. Regardless, he was law enforcement in Gilberton for over a decade before his first instance of questionable competence.

Questionable professionalism

On Saturday, August 27, 2011, while off duty, Kessler was in the Second Street Pub in Girardville. He was wounded by his own weapon when he intervened in a scuffle and shot himself in his left hand (link). A friend then drove him to the hospital, and it is reported that Kessler took the pistol with him. The Sheriff’s Department has never found the firearm to complete their investigation (link).

Then, in 2012, we find that the Borough of Gilberton Mayor, Mary Lou Hannon, and police Chief Mark Kessler were ordered to pay $15,000 to settle a federal lawsuit that alleged Councilman Robert Wagner had been unconstitutionally arrested, strip-searched, and imprisoned because he used profanity toward the mayor. Wagner filed the lawsuit after Kessler arrested him for two counts of harassment for calling Mayor Hannon to complain about youths riding quads and dirt bikes at late hours. Hannon had directed Kessler to arrest Wagner (link).

Support of the Patriot Community

After these two questionable events, Kessler stepped up his support of the Second Amendment when, on January 24, 2013, he obtained unanimous council approval for his “2nd Amendment Preservation Resolution” (link), which nullifies all “federal, state or local acts, laws, orders, rules or regulations regarding firearms, firearms accessories or ammunition [that] are a violation of the 2nd Amendment along with Article 1, section 21 of the Pennsylvania Constitution”, within the Borough boundaries. After passage, Oathkeepers member Larry Liguori presented Chief Kessler with an Oathkeepers t-shirt. It seems that Kessler had begun activism as an American Patriot. (Image of Resolution)

By January 2013, Stewart Rhodes, of “Oathkeepers”, had Kessler as a guest and praised his efforts (link, 1 hr 16 min). Interestingly, using the Revolutionary War as an example, Kessler says that we should have automatic weapons, since the government has them. He did not distinguish beyond firearms, and he did not address the fact that people could own any weapon the government owned, back then. This omission will be addressed, later.

On February 4, 2013, Kessler registered an Internet domain, “chiefkessler.com“, and posted the following:

ALERT! Anyone interested in joining a reserve force with the Gilberton Borough Police Department ,contact Chief Kessler immediately for details! Due to our Country’s current situation I’m compelled to form an auxiliary force, DHS (Department of Home Land Security) is stock piling ammunition, Stock Piling Machine guns at a alarming rate! I believe we have no choice for what MAY OR MAY NOT happen shortly!, Ask yourself this one question, can you walk into any sporting good store and purchase 22LR, 9mm, 45ACP , 40 caliber, 5.56/223 , 7.62×51 or 308 ammunition in quantity’s more then[sic] a box or two ? (OR ANY AT ALL) if you answer No, ask yourself why ???? I’ll tell you why because the GOVERNMENT is STOCKPILING BILLIONS of rounds of ammunition! (for what ????) even the police can’t get ammo ! DHS has enough weapons and ammo to wage a 30 year GROUND war, (BUT ON WHO and WHY) what is wrong with this picture???, Maybe the tyrants want to take as much ammo off the civilian market AS POSSIBLE! either way it’s very disturbing!

This quickly evolved into what is claimed to be an national effort to establish “reserve forces” under the name of Constitution Security Force (CSF), and was picked up by the alternative media (link), beginning a broader “presence” in the patriot community. In an April 2013 video, Kessler explains his creation of the CSF. Claims were made that 38 states had adopted the CSF concept and was recruiting members. It seems that Kessler tired of the CSF, since many of the designated state representatives seemed to have lost contact with Kessler.

In an April 18, 2013, article, “Spooks Threaten To Assassinate Patriot Police Chief Mark Kessler“, Kessler claims that he has been targeted and received death threats. The article states that he received a call, “with the caller warning he is going to get a bullet to his head if he doesn’t stop the work he is doing. The call was traced by the Gilberton police to a pre-paid cell phone purchased and activated anonymously.” Interestingly, the Gilberton police is Kessler, himself, though he provides no proof of the investigation and its results. However, receiving threats creates an image that would be suitable to impress other patriots. Another article (link) states that Kessler said that he “couldn’t tell you how many death threats that they have been receiving at borough hall where I work,” on his then Spreaker radio show.

By August, the people of Gilberton were really fed up with Kessler’s erratic behavior. Kessler was suspended from his duties as Chief of Police for thirty days, beginning on the 1st. In such a small town, where everybody knows nearly everybody, the extent of displeasure of Kessler’s activities was amply demonstrated when there was little opposition to a sign put up by the Coalition to Stop Gun Violence.

Termination of Kessler

With the suspension nearly over, on August 30, and Kessler and his attorney failed to appear for the meeting; as a result, the suspension was continued, indefinitely. At question was Kessler’s $30,000 annual salary and whether the Borough would have to pay him, even if he was fired (link). That final decision to fire him would have to wait. Even Mainstream media outlets were beginning to cover the story. Kessler was getting far more than his “fifteen minutes of fame”.

On September 19, 2013, the Borough Council met in a closed-door disciplinary proceeding, considering allegations that Kessler had improperly used a state-administered program to buy discounted tires for his personal vehicle, failed to submit required crime data, and made derogatory comments about borough officials. The decision was to fire Kessler (link).

On October 10, the Borough Council held a required public hearing. Kessler and attorney were present when one of his supporters “accidently” dropped a loaded pistol on the concrete floor, just inches away from where Kessler sat. The supporter was asked to leave and the meeting was “continued” (link).

On February 21, 2014, a final settlement was reached with regard to Kessler’s discharge. He would receive $30,000 over 11 months. He had been suspended without pay since August 1. He also agreed to withdraw his demand for a public hearing over his suspension and the borough would not challenge any attempt by Kessler to obtain unemployment compensation. Further, he agreed to not to have any contact with past and present Gilberton officials including the mayor, council members and their families, not to attend any borough meetings or comment in any manner on the settlement. Should he not abide by those terms, and return all borough equipment, Gilberton has the right to stop payments. He was also prohibited from any type of legal action related to his suspension and termination (link). The Council then voted to do away with a Borough Police Department (link).

Kessler’s new future

Due to the apparent lack of success with Kessler’s first venture into organizing patriots, the Constitution Security Force, on February 24, 2014, he announced that his new venture, III% BOG (Boots on the Ground) had already achieved membership in the thousands, in chapters around the country. He will “vet” all members, to assure that they are acceptable to the organization (or, perhaps, for other nefarious purposes).

In describing III% BOG, Kessler’s attorney says:

“Say there is some sort of a civil riot. Mr. Kessler’s group would not be part of the individuals who are promulgating the overthrow of government… He would be on the side of trying to assist government that there isn’t any kind of unruly behavior, the breaking of laws…”

Mark Kessler – Recent Past – Part 2

Mark Kessler – The “Screw” Turns – Part 3

Mark Kessler – Coming Out of the Closet – Part 4