Under the First Amendment, you don’t have to speak (to government officials or anyone else). The Fourth Amendment protects you against unreasonable searches and seizures by the government.
By John W. Whitehead and Nisha Whitehead
A federal COVID-19 vaccination strike force may soon be knocking on your door, especially if you live in a community with low vaccination rates. Will you let them in?
More to the point, are you required to open the door?
The Biden Administration has announced that it plans to send federal “surge response teams” on a “targeted community door-to-door outreach“ to communities with low vaccination rates in order to promote the safety and accessibility of the COVID-19 vaccines.
That’s all fine and good as far as government propaganda goes, but nothing is ever as simple or as straightforward as the government claims, especially not when armed, roving bands of militarized agents deployed by the Nanny State show up at your door with an agenda that is at odds with what Supreme Court Justice Louis Brandeis referred to as the constitutional “right to be let alone.”
Any attempt by the government to encroach upon the citizenry’s privacy rights or establish a system by which the populace can be targeted, tracked and singled out must be met with extreme caution. These door-to-door “visits” by COVID-19 surge response teams certainly qualify as a government program whose purpose, while seemingly benign, raises significant constitutional concerns.
First, there is the visit itself.
While government agents can approach, speak to and even question citizens without violating the Fourth Amendment, Americans have a right not to answer questions or even speak with a government agent.
Courts have upheld these “knock and talk” visits as lawful, reasoning that even though the curtilage of the home is protected by the Fourth Amendment, there is an implied license to approach a residence, knock on the door/ring the bell, and seek to contact occupants. However, the encounter is wholly voluntary and a person is under no obligation to speak with a government agent in this situation.
Indeed, you don’t even need to answer or open the door in response to knocking/ringing by a government agent, and if you do answer the knock, you can stop speaking at any time. You also have the right to demand that government agents leave the property once the purpose of the visit is established. Government officials would not be enforcing any law or warrant in this context, and so they don’t have the authority of law to remain on the property after a homeowner or resident specifically revokes the implied license to come onto the property.
When the government’s actions go beyond merely approaching the door and knocking, it risks violating the Fourth Amendment, which requires a warrant and probable cause of possible wrongdoing in order to search one’s property. A government agent would violate the Fourth Amendment if he snooped around the premises, peering into window and going to other areas in search of residents.
It should be pointed out that some judges (including Supreme Court Justice Gorsuch) believe that placing “No Trespassing” signs or taking other steps to impede access to the door is sufficient to negate any implied permission for government agents or others to approach your home, but this view does not have general acceptance.
While in theory one can refuse to speak with police or other government officials during a “knock and talk” encounter, as the courts have asserted as a justification for dismissing complaints about this police investigative tactic, the reality is far different. Indeed, it is unreasonable to suggest that individuals caught unaware by these tactics will not feel pressured in the heat of the moment to comply with a request to speak with government agents who display official credentials and are often heavily armed, let alone allow them to search one’s property. Even when such consent is denied, police have been known to simply handcuff the homeowner and conduct a search over his objections.
Second, there is the danger inherent in these knock-and-talk encounters.
Although courts have embraced the fiction that “knock and talks” are “voluntary” encounters that are no different from other door-to-door canvassing, these constitutionally dubious tactics are highly intimidating confrontations meant to pressure individuals into allowing police access to one’s home, which then paves the way for a warrantless search of one’s home and property.
The act of going to homes and taking steps to speak with occupants is akin to the “knock and talk” tactic used by police, which can be fraught with danger for homeowners and government agents alike. Indeed, “knock-and-talk” policing has become a thinly veiled, warrantless exercise by which citizens are coerced and intimidated into “talking” with heavily armed police who “knock” on their doors in the middle of the night.
“Knock-and-shoot” policing might be more accurate, however.
“Knock and talks” not only constitute severe violations of the privacy and security of homeowners, but the combination of aggression and surprise employed by police is also a recipe for a violent confrontation that rarely ends well for those on the receiving end of these tactics.
For example, although 26-year-old Andrew Scott had committed no crime and never fired a single bullet or threatened police, he was gunned down by police who knocked aggressively on the wrong door at 1:30 am, failed to identify themselves as police, and then repeatedly shot and killed Scott when he answered the door while holding a gun in self-defense. The police were investigating a speeding incident by engaging in a middle-of-the-night “knock and talk” in Scott’s apartment complex.
Carl Dykes was shot in the face by a county deputy who pounded on Dykes’ door in the middle of the night without identifying himself. Because of reports that inmates had escaped from a local jail, Dykes brought a shotgun with him when he answered the door.
As these and other incidents make clear, while Americans have a constitutional right to question the legality of a police action or resist an unlawful police order, doing so can often get one arrested, shot or killed.
Third, there is the question of how the government plans to use the information it obtains during these knock-and-talk visits.
Because the stated purpose of the program is to promote vaccination, homeowners and others who reside at the residence will certainly be asked if they are vaccinated. Again, you have a right not to answer this or any other question. Indeed, an argument could be made that even asking this question is improper if the purpose of the program is merely to ensure that Americans “have the information they need on how both safe and accessible the vaccine is.”
Under the Privacy Act, 5 U.S.C. 552a, an agency should only collect and maintain information about an individual as is “relevant and necessary to accomplish a purpose of the agency.” In this situation, the government agent could accomplish the purpose of assuring persons have information about the vaccine simply by providing that information (either in writing or orally) and would not need to know the vaccination status of the residents. To the extent the agents do request, collect and store information about residents’ vaccination status, this could be a Privacy Act violation.
Of course, there is always the danger that this program could be used for other, more nefarious, purposes not related to vaccination encouragement. As with knock-and-talk policing, government agents might misuse their appearance of authority to gain entrance to a residence and obtain other information about it and those who live there. Once the door is opened by a resident, anything the agents can see from their vantage point can be reported to law enforcement authorities.
Moreover, while presumably the targeting will be of areas with demonstrated low vaccination rates, there is no guarantee that this program would not be used as cover for conducting surveillance on areas deemed to be “high crime” areas as a way of obtaining intelligence for law enforcement purposes.
We’ve been down this road before, with the government sending its spies to gather intel on American citizens by questioning them directly, or by asking their neighbors to snitch on them.
Remember the egregiously invasive and intrusive American Community Survey?
Unlike the traditional census, which collects data every ten years, the American Community Survey (ACS) is sent to about 3 million homes per year at a reported cost of hundreds of millions of dollars. Moreover, while the traditional census is limited to ascertaining the number of persons living in each dwelling, their ages and ethnicities, the ownership of the dwelling and telephone numbers, the ACS is much more intrusive, asking questions relating to respondents’ bathing habits, home utility costs, fertility, marital history, work commute, mortgage, and health insurance, among other highly personal and private matters.
Individuals who receive the ACS must complete it or be subject to monetary penalties. Although no reports have surfaced of individuals actually being penalized for refusing to answer the survey, the potential fines that can be levied for refusing to participate in the ACS are staggering. For every question not answered, there is a $100 fine. And for every intentionally false response to a question, the fine is $500. Therefore, if a person representing a two-person household refused to fill out any questions or simply answered nonsensically, the total fines could range from upwards of $10,000 and $50,000 for noncompliance.
At 28 pages (with an additional 16-page instruction packet), the ACS contains some of the most detailed and intrusive questions ever put forth in a census questionnaire. These concern matters that the government simply has no business knowing, including questions relating to respondents’ bathing habits, home utility costs, fertility, marital history, work commute, mortgage, and health insurance, among others. For instance, the ACS asks how many persons live in your home, along with their names and detailed information about them such as their relationship to you, marital status, race and their physical, mental and emotional problems, etc. The survey also asks how many bedrooms and bathrooms you have in your house, along with the fuel used to heat your home, the cost of electricity, what type of mortgage you have and monthly mortgage payments, property taxes and so on.
However, that’s not all.
The survey also demands to know how many days you were sick last year, how many automobiles you own and the number of miles driven, whether you have trouble getting up the stairs, and what time you leave for work every morning, along with highly detailed inquiries about your financial affairs. And the survey demands that you violate the privacy of others by supplying the names and addresses of your friends, relatives and employer. The questionnaire also demands that you give other information on the people in your home, such as their educational levels, how many years of school were completed, what languages they speak and when they last worked at a job, among other things.
While some of the ACS’ questions may seem fairly routine, the real danger is in not knowing why the information is needed, how it will be used by the government or with whom it will be shared.
Finally, you have the right to say “no.”
Whether police are knocking on your door at 2 am or 2:30 pm, as long as you’re being “asked” to talk to a police officer who is armed to the teeth and inclined to kill at the least provocation, you don’t really have much room to resist, not if you value your life.
Mind you, these knock-and-talk searches are little more than police fishing expeditions carried out without a warrant.
The goal is intimidation and coercion.
Unfortunately, with police departments increasingly shifting towards pre-crime policing and relying on dubious threat assessments, behavioral sensing warnings, flagged “words,” and “suspicious” activity reports aimed at snaring potential enemies of the state, we’re going to see more of these warrantless knock-and-talk police tactics by which police attempt to circumvent the Fourth Amendment’s warrant requirement and prohibition on unreasonable searches and seizures.
Here’s the bottom line.
These agents are coming to your home with one purpose in mind: to collect information on you.
It’s a form of intimidation, of course. You shouldn’t answer any questions you’re uncomfortable answering about your vaccine history or anything else. The more information you give them, the more it can be used against you. Just ask them politely but firmly to leave.
In this case, as in so many interactions with government agents, the First, Fourth and Fifth Amendments (and your cell phone recording the encounter) are your best protection.
Under the First Amendment, you don’t have to speak (to government officials or anyone else). The Fourth Amendment protects you against unreasonable searches and seizures by the government. And under the Fifth Amendment, you have a right to remain silent and not say anything which might be used against you.
You can also post a “No Trespassing” sign on your property to firmly announce that you are exercising your right to be left alone. If you see government officials wandering around your property and peering through windows, in my opinion, you have a violation of the Fourth Amendment. Government officials can ring the doorbell, but once you put them on notice that it’s time for them to leave, they can’t stay on your property.
It’s important to be as clear as possible and inform them that you will call the police if they don’t leave. You may also wish to record your encounter with the government agent. If they still don’t leave, immediately call the local police and report a trespasser on your property.
Remember, you have rights.
The government didn’t want us to know about—let alone assert—those rights during this whole COVID-19 business.
After all, for years now, the powers-that-be—those politicians and bureaucrats who think like tyrants and act like petty dictators regardless of what party they belong to—have attempted to brainwash us into believing that we have no right to think for ourselves, make decisions about our health, protect our homes and families and businesses, act in our best interests, demand accountability and transparency from government, or generally operate as if we are in control of our own lives.
But we have every right, and you know why?
Because as the Declaration of Independence states, we are endowed by our Creator with certain inalienable rights—to life, liberty, property and the pursuit of happiness—that no government can take away from us.
Unfortunately, that hasn’t stopped the government from constantly trying to usurp our freedoms at every turn. Indeed, the nature of government is such that it invariably oversteps its limits, abuses its authority, and flexes its totalitarian muscles.
Take this COVID-19 crisis, for example.
What started out as an apparent effort to prevent a novel coronavirus from sickening the nation (and the world) has become yet another means by which world governments (including our own) can expand their powers, abuse their authority, and further oppress their constituents.
The government has made no secret of its plans.
Just follow the money trail, and you’ll get a sense of what’s in store: more militarized police, more SWAT team raids, more surveillance, more lockdowns, more strong-armed tactics aimed at suppressing dissent and forcing us to comply with the government’s dictates.
It’s chilling to think about, but it’s not surprising.
In many ways, this COVID-19 state of emergency has invested government officials (and those who view their lives as more valuable than ours) with a sanctimonious, self-righteous, arrogant, Big Brother Knows Best approach to top-down governing, and the fall-out can be seen far and wide.
It’s an ugly, self-serving mindset that views the needs, lives and rights of “we the people” as insignificant when compared to those in power.
That’s how someone who should know better such as Alan Dershowitz, a former Harvard law professor, can suggest that a free people—born in freedom, endowed by their Creator with inalienable rights, and living in a country birthed out of a revolutionary struggle for individual liberty—have no rights to economic freedom, to bodily integrity, or to refuse to comply with a government order with which they disagree.
According to Dershowitz, who has become little more than a legal apologist for the power elite, “You have no right not to be vaccinated, you have no right not to wear a mask, you have no right to open up your business… And if you refuse to be vaccinated, the state has the power to literally take you to a doctor’s office and plunge a needle into your arm.”
Dershowitz is wrong: as I make clear in my book Battlefield America: The War on the American People, while the courts may increasingly defer to the government’s brand of Nanny State authoritarianism, we still have rights.
The government may try to abridge those rights, it may refuse to recognize them, it may even attempt to declare martial law and nullify them, but it cannot litigate, legislate or forcefully eradicate them out of existence.