Guest Column: Legal realities behind 8647 inquiries

The recent visit by the Secret Service to the homes of certain residents of eastern Long Island raises troubling questions.
All people residing in the United States should be aware of the rights afforded them under the constitutions of the United States and the State of New York. Notwithstanding the fact that constitutional protections are under attack, the legal framework outlined in these documents remains the supreme law of the land

The framers made clear that power comes from the people, not the government. That principle grew out of the colonists’ experience under royal rule, including taxation without representation, trade restrictions, and crown-imposed requirements that they buy and sell goods only through England. These abuses helped ignite the Revolution, whose success ultimately led to the Constitution.

This new framework ultimately included the Bill of Rights, which for the first time guaranteed essential protection for the citizenry. Under the Fifth Amendment, for example, every person has the right to remain silent when questioned by the government. No one is required to speak with government officials simply because they ask. Individuals may tell law enforcement that they do not wish to answer questions, and no one should fear that exercising this right suggests they have something to hide. They are merely asserting constitutional protection. The right to remain silent applies even after an arrest. Although a person must comply with a lawful arrest, that compliance means submitting to the arrest — not answering questions. Most people know that police must warn arrested individuals that they have “the right to remain silent.” The law protects that right, even after an arrest. These protections are no less applicable for those not taken into custody.

Once a person communicates to law enforcement officials that they don’t wish to speak, the officials’ implied permission to be on the person’s property is no longer viable. Therefore, it is more than appropriate to ask the law enforcement official to leave.
This can be difficult because anyone in this situation may feel intimidated by a federal official displaying a badge. For that reason, it is important to assert your rights respectfully.

We should all step back and question why taxpayer-funded law enforcement professionals are being tasked with conducting these inquiries. Questioning government conduct is not unpatriotic. It is quite the opposite. It is the highest form of patriotism.

At this point, we all know that this is about the indictment of James Comey for the now infamous sand scribbling of 8647. We also know that millions of people across this country have posted the same thing on Facebook and Instagram, as well as sign displays on their property. Notably, most people are aware that to “86” someone means to throw them out. Anyone who has any experience in bars and saloons knows this is a common phrase used by bartenders to throw someone out for misbehavior.

I have been a lawyer for 52 years. I served more than 10 years as a prosecutor in Suffolk County, approximately 23 years as a criminal defense lawyer in New York and across the country and concluded my career with 12 years on the New York State Supreme Court bench.

In my opinion, these government agents are pursuing this inquiry to avoid the legal problem in Mr. Comey’s case, known as selective enforcement. If it can be shown that millions of people used the same phrase Mr. Comey used while exercising their free-speech rights and are not being prosecuted, Mr. Comey has a strong basis for dismissal on selective-enforcement grounds.

Constitutionally, that claim is also known as a denial of equal protection of the laws under the Fifth and Fourteenth Amendments to the United States Constitution and the New York State Constitution. By investigating thousands who posted the same thing, the government can then argue that the selective enforcement argument has no merit. Of course, saying that none of the thousands who posted “8647” meant it as a threat except Mr. Comey stretches credulity.

My prediction is that Mr. Comey’s case will be dismissed or he will be acquitted by a jury. No citizen should have to go through the tension, fear and legal fees associated with defending yourself from a frivolous claim. Citizens everywhere should step up by not cooperating with government agents. This will act as a protest on this overwhelming waste of taxpayer money and further serve to send a message to the government that this conduct by our taxpayer-paid professionals will not be tolerated.

Mr. Mayer is a retired justice of the New York State Supreme Court.