Quote of the Day – 2011-05-17

From Teke at God’s Caliber, on the Kentucky v. King decision by the SCOTUS, and the other recent ruling by the Indiana Supreme Court banning any resistance to even blatantly illegal police actions.

There comes a point where not impeding Law Enforcements ability to do their job turns into allowing them to run roughshod over the citizens of this country.


One more thought on Kentucky v. King

What really gets me about this case is that there was no need to knock on the door before getting a warrant in the first place. They were looking for a person, not evidence. They knew he had to be in one of two apartments. He’s not going anywhere at that point without being seen. Why could they not take the time to get a warrant for each apartment to search for the suspect? Once they had the warrant, they could knock on the door and they would have the warrants to flash if the owners didn’t cooperate.

Is there any rule that says they have to bust down the door if they have a warrant, even if the homeowner cooperates?

Today, we mourn the death of the Fourth Amendment

The US Supreme Court today has essentially eviscerated the Constitution’s Fourth Amendment protection against warrantless searches of people’s homes. Not surprisingly, it was yet another consequence of the ongoing failure that is the government’s War on (Some) Drugs.

Remember, the Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The case is a somewhat odd one. The police encounter with the defendant, King, was accidental. After witnessing a controlled drug buy, the suspect went into an apartment building and the police lost track of him. There were two apartments he could have entered, and the police first chose to knock on King’s door – the wrong one – because they could smell marijuana outside the door. No one answered, and the police claim the heard sounds that made them think “someone was destroying evidence inside”, so they broke down the door. Once inside they found King, some marijuana, cocaine, and drug paraphernalia… and no trace of the suspect they were pursuing.

In court, the police claimed “exigent circumstances” – their belief that evidence was being destroyed – allowed them to enter and search without a warrant. After the lower courts accepted this explanation and rejected King’s challenge to the search, he was sentenced to 11 years in prison. The Kentucky Supreme Court then rejected the officers’ claim of exigent circumstances and overturned the conviction.

First, the court held, police cannot “deliberately creat[e] the exigent circumstances with the bad faithintent to avoid the warrant requirement.” (internal quotation marks omitted). Second, even absent bad faith, the court concluded, police may not rely on exigent circumstances if “it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances.” (internal quotation marks omitted). Although the court found no evidence of bad faith, it held that exigent circumstances could not justify the search because it was reasonably foreseeable that the occupants would destroy evidence when thepolice knocked on the door and announced their presence.

     Kentucky v. King, 563 U.S. _____ , 4(2011), [PDF p. 7] (internal citations omitted)

Today’s SCOTUS opinion [PDF warning] reverses the Kentucky opinion, holding that the smell, knocking on the door, and undefined sounds are enough for the police to claim “exigent circumstances” and justify a warrantless entry. Even more disturbing, however, is the Court’s overruling of stricter protections imposed by the courts of some states:

But others, including the Kentucky Supreme Court, have imposed additional requirements that are unsound and that we now reject. (Id. pp. 10-14 [PDF pp. 13-17], for the full arguments).

The decision in this case was 8-1. Justice Ginsburg, in her lone dissent, hits the key issue of this decision with her very first paragraph:

The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement indrug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant.

Id., Dissent, p. 1 [PDF p. 23]

As noted in the article I linked to at the beginning of this post, “Up until this decision, the Supreme Court’s interpretation of the Fourth Amendment has drawn a firm line at the entrance to a home. Warrantless entry has been allowed to a house for the eminently reasonable purposes of rendering emergency assistance to an injured occupant, to protect the well being of an endangered occupant, or the “hot pursuit” of a fleeing felon. In some limited instances, protection of evidence has been allowed, but generally more has been required than happened in this case.” The Court has traditionally imposed a strong burden on police in justifying warrantless searches of a person’s home.

The warrant requirement, Justice Jackson observed, ranks among the “fundamental distinctionsbetween our form of government, where officers are under the law, and the police-state where they are the law.” The Court has accordingly declared warrantless searches, in the main, “per se unreasonable.” “[T]he police bear a heavy burden,” the Court has cautioned, “when attempting to demonstrate an urgent need that might justify warrantless searches.”

That heavy burden has not been carried here.

King, dissent, p. 2 [PDF p. 24] (internal citations omitted)

Police may now break down your door without having to obtain a warrant, and based on only their claims of subjective things like “a smell” and “hearing sounds”. This is, effectively, no restriction on warrantless searches, since police are rarely (if ever) punished if their statements of subjective impressions are wrong. Moreover, once they have gained entry, anything they find is allowable as evidence against you, even if it has nothing to do with the reason they entered in the first place.

The Fourth Amendment is dead, though I expect the death throes will last for a little while yet.

And in a strong example of irony, for some reason the charges against the suspect the police were originally after were dropped.


[Source: Suite101.com article, retrieved 5/17/11]
[Source: Kentucky v. King, 563 U.S. _____ (U.S. Supreme Court slip opinion)(PDF warning), retrieved 5/17/11]

What do the courts do, again?

I recently stumbled on this anti-gun article by way of Hecate’s Crossroad, talking about how feminists should be anti-gun, because guns are responsible for domestic violence, or some similar totemic drivel. Of course, as an anti, the author completely overlooks how guns can allow a woman to defend herself against a larger and stronger attacker. Hecate does a pretty good job of demolishing the author’s reasoning.

Whenever somebody tries to tell me what to do or how to live my life, I immediately look to their motivations. What do these people stand to gain if I comply with their direction? What do they stand to lose if I don’t?
In the article linked above, the recurring theme is “women are victims who must be protected.” The sources of this “wisdom” are uniformly women-advocacy and victim-advocacy groups. In other words, organizations who would not exist if not for women and victims incapable of acting on their own behalf.

I can’t really do a better job than she did, so I’ll just say go take a look for yourself.

I did, however, want to hit on another part of the article. It’s really just one sentence, but it shows a serious misconception of our court system that seems to have begun to pervade the public perception.

If the courts see little public sympathy for gun regulations, they are unlikely to take the unpopular stance of defending them.

What is wrong with that statement? Can anyone tell me? Anyone? Bueller? Bueller?

How about this – the courts’ job is to rule based on the law and the Constitution as they are written, and their perception of public sympathy should have no impact on their decisions.

This is why the founders made Supreme Court Justices appointees for life – to insulate them from public opinion. The Executive and Legislative branches are already subject to public opinion by way of the election process. Congress and the President are the ones who can – and should – be swayed by public sympathy for or against laws and regulations. The Supreme Court, on the other hand, is isolated from the fleeting whims of public opinion.

One of the most important, and least known jobs of the courts is to act as a shield against oppression of the minority by the majority. The Constitution is one of their most important tools for doing so. If all is operating as it should, public opinion can sway the courts only by way of the legislature, or by Constitutional amendment.

The legislature is, of course, fairly easy – but legislatures cannot simply override the Constitution, and a law that is unconstitutional is not valid. A Constitutional amendment is a deliberately difficult and drawn out process, made so in order to outlast the whims of the mob and prevent abusive or ill-conceived amendments. It’s not perfect – the 18th Amendment was a good example – but in general it works well, allowing flexibility when needed but encouraging stability at all other times.

If the courts stop adhering to the laws and the Constitution as they are written in favor of following the whims of the mob, then our system will have stopped working altogether, and chaos will surely follow.

Other People’s McDonald thoughts

Sebastian at Snowflakes in Hell has a good post up about Thomas’ concurrence in McDonald, and he makes one very good point that I wish the other justices had the intestinal fortitude to follow.

I wish we had four more on the Court like him, because I generally agree with Thomas that stare decisis should not stand when it’s in clear conflict with the text and meaning of the Constitution, as it is here. [emphasis mine]

As I noted yesterday, the majority essentially took the coward’s way out, refusing to overturn a plainly wrong decision and re-establish the clear meaning of the P-or-I clause of the 14th Amendment in favour of taking the easy path using previously established incorporation guidelines under the Due Process clause. They chose to bow to the legal false god of stare decisis rather than to follow the plain text and meaning of the Constitution, because the correct path would have lead to the need to reevaluate a large body of existing incorporation precedent. They chose the easy path over the right path.

Realistically, using the Due Process clause as a basis for selective incorporation is as much a stretch of the plain language of the 14th as the neutering of P-or-I was. The Due Process clause reads:

nor shall any State deprive any person of life, liberty, or property, without due process of law;

That clause makes no reference to the rights of citizens as guaranteed by the Constitution or the other Amendments, only to “life, liberty, or property.” Yes, it can be argued that many of the protections of the Bill of Rights are essential to liberty, and that to deprive someone of one of those protections deprives them of liberty. But there is the point – it must be argued, for each one, under Due Process. This process of Selective Incorporation is a farce, because the plain meaning of the P-or-I clause, and the clear intent of the amendment – as it was understood then and now – is to ensure that all the protections of the Bill of Rights are to bind the states, as well as binding the Federal government.

Any other interpretation cheapens the 14th Amendment, the Bill of Rights, and the Constitution itself, and all eight Supreme Court Justices who did not choose to incorporate and restore the P-or-I clause should be ashamed for their failure to do what is right over what is convenient.

McDonald thoughts, Part I

I just started reading through it, but this paragraph caught my eye.

We see no need to reconsider that interpretation here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.

This is exactly what I was afraid they would do, and what I expected them to do. Essentially, they’re saying that “since there’s a way to incorporate this that’s been in place for decades, we aren’t going to look at anything else.”

Given the very large body of case law based on the nullification of P-or-I, they didn’t want to open that can of worms. Even with the near-universal opinion that the opinion in Slaughter-House was egregiously wrong,they chickened out of doing it the right way in favor of doing it the easy way.

The Second Amendment applies to the States!

Breaking News:

Just got an email alert from the VCDL that the SCOTUS opinion in Chicago v. McDonald has announced. SCOTUSblog seems to be overwhelmed right now and I can’t get it to load consistently – especially the liveblog.

Updates as I can get them and get them posted.

Update – 1026hrs:

The opinion is up and can be found here. It’s 214 pages.

Update – 1038hrs:

Per SayUncle:


Due process

Majority divided on standard.

Thomas for P&I

This makes me think Due Process will control, but P&I may have had some new life breathed into it. It will probably take a couple of days for me to read through the whole thing.

Update – 1147hrs:

Via Jenn at A Conservative Shemale, we have the AP article from the Washington Post.

Also, anyone have any guesses on where the first suit to arise from this will be? I’m thinking either California or Massachusetts.

You have the right to remain silent…

if you choose to give up that right, that’s your own fault.

Court: Suspects must say they want to be silent

WASHINGTON – The Supreme Court ruled Tuesday that suspects must explicitly tell police they want to be silent to invoke Miranda protections during criminal interrogations, a decision one dissenting justice said turns defendants’ rights “upside down.”

A right to remain silent and a right to a lawyer are the first of the Miranda rights warnings, which police recite to suspects during arrests and interrogations. But the justices said in a 5-4 decision that suspects must tell police they are going to remain silent to stop an interrogation, just as they must tell police that they want a lawyer.

The ruling comes in a case where a suspect, Van Chester Thompkins, remained mostly silent for a three-hour police interrogation before implicating himself in a Jan. 10, 2000, murder in Southfield, Mich. He appealed his conviction, saying that he invoked his Miranda right to remain silent by remaining silent.

I’d say this is probably good.* If you just sit there saying nothing, at what point do the police have to stop the interrogation? After the first question you don’t answer? Two questions? Twenty? This decision creates a “bright line” point where the police must stop the interrogation, without having to make assumptions or relying on a “reasonable person” test. Once you say you are exercising your right to remain silent, the police can’t keep trying to trick you or wear you down with a 3 or more hour interrogation. This decision protects both citizens rights, and the results of an interrogation like the one at issue here, where the suspect only answered intermittently.

Of course, the minority wouldn’t have that bright line.

Justice Sonia Sotomayor, the court’s newest member, wrote a strongly worded dissent for the court’s liberals, saying the majority’s decision “turns Miranda upside down.”

“Criminal suspects must now unambiguously invoke their right to remain silent — which counterintuitively, requires them to speak,” she said. “At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded.”

The majority seems to have a better grasp of reality.

“Thompkins did not say that he wanted to remain silent or that he did not want to talk to police,” Kennedy said. “Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ Here he did neither, so he did not invoke his right to remain silent.”

Also note that he implies a distinction between simply remaining silent and specifically invoking the right to remain silent to cut off questioning. This seems to me to say that you still have the right to remain silent without specifically invoking it – you can sit there and refuse to answer questions for as long as you want – but if you want to end the interrogation under your right to remain silent, you have to specifically say so.

That sounds perfectly reasonable, and consistent with another recent ruling that says if you want to invoke your right to a lawyer, you actually have to say you want a lawyer – merely asking “shouldn’t I have a lawyer” or saying “I think I should get a lawyer” isn’t enough, you have to say, unambiguously,  “I want a lawyer.”

Of course, one of the commenters on Yahoo said it best:

Headline is a lie. It should have said, “Court finds when you answer a question willingly you aren’t remaining silent.”

*Caveat: I have not read the actual decision yet. This post is my opinion based on the AP story. If I find out the AP “forgot” to report an important part of the decision, my opinion may change.

Signs of our broken court system

Chris Byrne at The AnarchAngel has a good post up on two recent Supreme Court decisions that, especially when compared to each other,  show how our court system is broken.

It seems clear to me, that both of these decisions are examples where justices are deciding a case based on what they want to do and finding a way to justify it, rather than a considered opinion of the law and the constitution.

In the first case, the majority came to what I believe is the right decision on constitutional ground, but for what appear to be the wrong reasons. The minority on the other hand are supporting an unconstitutional practice, based on pragmatic considerations.

In the second case, the majority supported a CLEARLY unconstitutional practice for pragmatic reasons; and the minority dissented based on the constitution.

Both cases however, highlight a major problem with our “justice system” today: We can’t deal effectively with our criminals, our prisoners, or our prisons.

There are many reasons for this of course, but what it comes down to, is that there are too many crimes, too many criminals, and too little honesty in how we deal with either.

It’s a pretty lengthy post, but definitely worth the time. You should go read it.

Some quick thoughts on Elena Kagan

I’m still getting caught up after Real Life™ snuck up and knocked me around a bit, but I have had a couple of thoughts about the latest Supreme Court pick.

A)  Lesbian, straight, or whatever, as long as she bases her (judicial) opinions on the Constitution, I don’t care. The only legitimate question is whether or not she’ll let her sexual orientation, whatever it may be, interfere with an impartial interpretation of the Constitution and the law. Given O’s past statements about looking for nominees based on their “empathy”, I’m not too confident about this.

B)  I have to be hesitant about any nominee who’s never been a judge before, in any court. She had apparently never even actually argued a case in court before she was confirmed as Solicitor General, and her first argument in front of the Supreme Court was less than a year ago.

So, Kagan has zero experience as a judge, almost no experience with the Supreme Court, and very little experience even being in a courtroom. Her two major qualifications seem to be the fact that she is currently the Solicitor General (which seems to traditionally bring automatic consideration for any SCOTUS opening), and her time as the Dean of Harvard Law School.

The only bright side I see to this is the fact that, given who she’s replacing, she’s not likely to be able to do a lot of damage – her confirmation would effectively maintain the status quo, unless she surprises Obama and leans to the Right in some of her decisions.

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