Your Eighth Amendment Rights Are Probably The Most Ignored

“Two wrongs may not make a right, but for your liberty you’ll have to fight.” -Not Johnnie Cochran

Today could still be a good day, but it probably won’t be. After all, you’ve just been pulled over by the cops for a California roll.

No, I’m not talking about the ubiquitous sushi roll eaten solely by people who don’t know real sushi. This California roll is the one where you roll up to a stop sign with your motor vehicle, see no one is coming across the intersection, and then roll into your right-hand turn without actually stopping.

It’s harmless, really. I mean, you’d never do it if you thought you’d hit someone, and the cop has to know that.

Yes siree, the cop’s just back there at her vehicle checking to make sure that you aren’t a serial killer, and she’ll be back with your $75 ticket shortly. Paying it will sting, but you’re remembering the 120 times you’ve California rolled and not gotten caught.

We call that California Kismet.

“Sir, I’m going to need you to step out of the vehicle,” comes a voice from just outside your peripheral.

You pull your eyes away from the mobile game you were playing and jerk your head to the left to look at the speaker. Immediately, you find that this was a mistake, as Officer Burns slaps her hand down atop her firearm. People who play phone games are scary, after all.

“Get out of my car?” you ask, confused. Out of the corner of your right eye, you discover a male cop approaching the passenger side of your vehicle. He tries the door, but it’s locked. “What is this?”

“I asked you to step out of the car, and right now, you’re in danger of being arrested for obstruction,” Burns replies.

What? Obstruction? The only thing you’re obstructing is the shoulder of the road, and that’s because these two goons pulled you over. They can’t possibly arrest you for asking a question. You know your rights, and that’s not how the law works here in the Golden State.

“That’s not how the law works here in the Golden State,” you assert. “I’m asking why you’re pulling me out of my vehicle for a traffic stop where you could just give me a ticket. I know I don’t have any warrants or anything.”

And you don’t. You’re squeaky clean. Heck, you’ve barely left the house since the pandemic. Home-Work-Grocer-Gas-Home. They’ve got nothing, and you know it.

“Just to be clear, you’re not going to get out of the vehicle?” asks the male cop. You look at his name tag and see Johnson. You nod, thinking he does look like a Johnson.

“I didn’t say that,” you say. “I’m asking why you’re pulling me out of the car for no reason.”

Then they pull you out of the car, accuse you of resisting their efforts to restrain you so that their body cams can pick that up, and then throw you in the back of their police cruiser.

When you get to the precinct, they charge you with obstruction, resisting arrest, and assaulting an officer — because Burns sprained her wrist while trying to make your cuffs too tight.

Your bail is set at $15,000, but don’t worry; you only have to pay a tenth of that.

Fortunately, when the bodycam footage is viewed by the DA, all of the charges get thrown out, seeing as how the only thing you’re guilty of is failure to stop.

Now you’re free, $1500 poorer, and utterly consumed by rage. Twas injustice that was happened upon you. That much is certain. But which kind and how might you receive your due remuneration?

The answer is actually simple — like eighth grade simple.

Coming In Eighth

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This one is short and sweet. Simply put, the state is not allowed to use its procedural authority to inflict undue harm upon a citizen. And no, it doesn’t matter that you’ve committed a crime, though you obviously shouldn’t. The cause has to justify the effect.

There are three clauses to the 8th: They can’t give you crazy bail, they can’t fine you an absurd amount, and they can’t torture you. Each of them, however, have some adjectival problems that we should talk about.

What does excessive mean? No, don’t ask Noah Webster, Jeeves, or Siri. They’ll define it for you, sure, but they can’t guess what a judge will consider excessive, and that’s the only thing that matters.

What about cruel and unusual? Again, that’s for a judge to decide. I could see a bad judge ruling that a cruel punishment is okay as long as it’s the usual cruelty, but as most judges are competent, this clause is taken to mean that the state can’t use harm as a tool unto itself. Punishment must be commensurate to the crime.

Based on the way it was written, the Eighth Amendment displays a tremendous amount of humanity. However, since the language of the law leaves too much room for interpretation, it falls on the American citizenry to ensure that we see only the best “interpreters” hired for the job.

And that brings us to story time.

How We Got Here

In 1790, over a year before the ratification of the Bill of Rights, George Washington signed the Crimes Act of 1790 into law. This law authorized public whipping and the use of the pillory as punishment, and if you don’t know what a pillory is, then take a gander at the picture below.

Like many things in our legal code, the allowance of the pillory is something we got from England. They used said punishment on a guy who — though a heinous offender of crimes that caused fatalities — could only be found guilty of perjury.

But people hated him, so they put him on the pillory rack as punishment.

It was excessive. It was cruel. It was unusual for the crime of perjury. And the Founding Fathers learned from this.

So, even though it was introduced in 1789, the 8th got passed along with the rest of Bill of Rights at the tail end of 1791, and we got a guarantee of fair punishment.

LOL. Just kidding. Slavery was still existent, even as punishment for a crime, and death by firing squad went on into the 20th Century.

It’s Still the Deal

All that stuff from before was interesting at best, right? There couldn’t possibly be any relevance to stuff happening today, I hear someone thinking aloud.

Well, consider this. The law, as it’s stated, applies to punishment by the state in general. That means, even if you’re not taken to jail, if a cop does something excessive, cruel, or unusual to punish you during a stop, it’s unconstitutional — and should be prosecutable.

If you, in anger or resentment, show a cop a distasteful gesture or call them a churlish name and that action results in you getting pulled over or harassed, that doesn’t only violate your 1st and 4th Amendment rights, it also violates your 8th. If that cop tazes you because you refuse to be pulled out the car for exercising those two aforementioned rights, that violates your 8th.

In order to circumvent your 8th Amendment rights, the dirty ones try to do things like declaring that you’re resisting arrest they’ve not declared, obstructing an investigation on yourself by not telling on yourself, and that you’re disrupting the peace that existed right up until they decided it didn’t.

They do this to CYA, also known as Cover Your @$$ in police speech. That means that, if they don’t find anything otherwise incriminating, the fact that you’ve been stopped is a liability for them. So, they have to engineer a charge in order to justify interrupting your life.

But here’s what you do.

Same Old Same Old

Have I said to record everything before? Go check the other parts of this Amendment series to keep me honest, but I’m sure that I have.

Get a dashcam, front and back. Pull out your phone and record your interactions. It doesn’t stop tyranny, but it does act as a receipt that should be usable for you to get your refund.

Don’t talk to them more than you need to. Answering questions almost always puts you in a worse position.

Do you know why you were pulled over? No, you don’t. You may think you do, but you probably also think you can dance, and we both know that ain’t true. Don’t answer the question and forget where you put those tap shoes.

Don’t answer questions that aren’t germane to your stop, either. Comply with orders that aren’t excessively humiliating or life-threatening only after questioning what the consequence of failing to do so will be. Confirm that you’re complying under duress or fear of punishment.

Then sue.

That’s it. Hit those pockets until judges realize that keeping bad cops on the streets endangers good cops, diminishes faith in the state, and could result in injury to innocent citizens. Don’t settle either, especially here in California. With the Bane Act, your total won in a successful suit goes up exponentially, and that’s the kind of effect that spurs change.

And, when you win both a victory for the people and for your pockets, then you can dance — even if you can’t dance.