Posts tagged ‘4th amendment’

03/27/2013

Three cheers for SCOTUS!*

by wfgodbold

Yesterday, in a 5-4 decision, the Court held that bringing a drug dog onto the curtilage of a house constituted a search under the Fourth Amendment. This seems like common sense, but given the Court’s sui generis treatment of drug dogs in the past, it wasn’t actually a slam dunk.

Scalia wrote for the majority (and was joined by Thomas, Ginsberg, Sotomayor, and Kagan), and though I haven’t yet read the opinion, the reasoning seems like it should follow pretty clearly from his opinion in Kyllo. Scalia relied in part on the reasoning used in last year’s GPS case.

Best line (seen excerpted elsewhere):

We have accordingly recognized that “the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.” Breard v. Alexandria, 341 U. S. 622, 626 (1951). This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts and trick-or-treaters. [emphasis added]

The Court then held today that the Federal Tort Claims Act applies to law enforcement acting within the scope of their duties–any activity in the scope of their duties, not merely investigation or law enforcement. I don’t know anything about the FTCA, but anything that can help hold law enforcement accountable is a good thing, right?

Standard disclaimer: I’m just a law student. If you rely on anything I’ve said here, on your own head be it.

*Why, yes, I am cheering SCOTUS in a cryptically titled blog post. You probably thought this was going to be about gay marriage or DOMA.

Fooled you!

12/18/2012

Those proposing bans on semiautomatic firearms* want to take us back to the ’80s

by wfgodbold

The 1880s.

Those of you who are good at math will note that that is closer to the 1791 ratification of the Second Amendment than to today (~90 years vs. ~130 years). Certainly far closer to the framing than TV, or the internet, but about on par with radio.

Proposing that somehow the arms protected by the Second Amendment are only those in existence at its framing and ratification is the first step down a dangerous road. If that logic applies to the Second Amendment, there’s no reason it couldn’t apply to any of the others.

Twitter? Facebook? The entire internet? TV? Movies? Video games?

Not protected under the First Amendment because at its framing and ratification you had to own a printing press and print pamphlets or stand on a soapbox and shout at passers-by to be heard.

Email? Cars? Your computer? Cloud storage?

All searchable without a warrant, probable cause, or even reasonableness, because the framers did not have any of that technology.

If you don’t like the Second Amendment, you’re welcome to try to repeal it, but consider: Would repealing the First Amendment mean that we no longer have the freedom of speech, or the press, or religion? Rights are not conferred by the government–they are, in the words of the Framers, unalienable.

Self-defense is a human right, and the best, effective means of self-defense is a firearm. A firearm puts the weak, the infirm, and the small on equal footing with their attacker.

To abrogate that right in the face of media-driven hysteria would be wrong, particularly when that hysteria is based on several false assumptions: (1) Mass shootings are not becoming more common, (2) An assault weapons ban would not have stopped the CT shooter, (3) Anything that would have prevented the CT shooting would have serious constitutional problems, and (4) America has already had a conversation about guns, and the gun control side lost.

I understand the drive to do something, but gun control proponents are focused more on doing anything, whether it would work or not, and whether it would be constitutional or not.

*Including, among others, the NY Post, which somehow fails to note (probably because of the pearl-clutching) that the AR-15 was invented in the late 1950s. The NYT notes that the AR-15 is the most popular rifle in America (and yet disingenuously posts a picture of a rifle that would be illegal under CT law, instead of one that was legal, like the shooter actually used). In Heller, the Supreme Court held that the Second Amendment protects arms in “common use.” (554 U.S. at 627) The most popular rifle in America surely falls under this “common use” umbrella.

08/07/2012

Why should I do any soul-searching?

by wfgodbold

I didn’t kill anyone.

I didn’t suggest that someone else kill someone.

Yes, the shooting at the Sikh temple in Wisconsin was a tragedy. But it was no less a tragedy than the recent mass stabbing in China (which, you will notice, was more deadly: 8 killed and 5 wounded in China, as opposed to 6 killed and 4 wounded in Wisconsin).

President Obama said that we must “do some soul searching to examine additional ways that we can reduce violence.”

I will commend him for not actually saying “gun violence;”* being shot kills you just as dead as being stabbed, bludgeoned, or poisoned. However, I can’t actually reduce violence myself; I’m not violent.

“But,” you say, “don’t you carry a weapon?”

Yes, but I don’t carry it to be violent.

I carry to prevent violence.

The police aren’t there to protect me. They’re not there to protect you.

The police are there to clean up after the fact, investigate, and deter criminal behavior.

Not to protect anyone else.

Since I can’t afford bodyguards (like Michael Bloomberg or Richard Daley), I choose to take responsibility for my own safety.

*Unlike the nanny of the decade, Michael Bloomberg. Given his track record with other amendments, it’s not surprising he still hates the second. DC v. Heller is still good law; handguns and semi-auto weapons are protected because they’re in common use.**

**This standard seems to be begging the question. Automatic weapons aren’t in common use because they’ve been heavily regulated since the 1934 NFA, and de facto banned since 1986***. According to the court’s logic in Heller, this ban is fine because automatic weapons aren’t in common use, but they’re not in common use because they’re banned.

***They’re not actually banned de jure; if you pay for the tax stamp, you can buy a machine gun that was manufactured before 1986; however, they’re not making any more of them, so qualifying automatic weapons can cost upwards of $10,000.

07/23/2012

Tab clearing (Blood Dancing Edition)

by wfgodbold

Everyone has by now heard about the tragic shooting at the midnight premiere of The Dark Knight Rises in Aurora, CO. I think this is the third mass shooting to occur since I started blogging (the other two being Loughner’s rampage in Arizona, and Brevik’s in Norway); James Holmes’s spree seems (at this point) to have more in common with the latter than the former, especially given how much planning was involved.

Of course, the usual suspects wasted no time in clamoring for an “honest conversation on gun control,” which means, of course, the same thing as “compromise.” That is, they get everything they want (more gun control), and we are left holding the bag.

Roger Ebert kicked things off, Friday, with his opinion piece in the NYT, in which he calls our gun laws “insane.” He talked about how no one at the theater in Aurora shot back, even though people say they need guns to defend themselves. Apparently Cinemark has a no guns policy. This policy was just as effective here as they were at Virginia Tech, Fort Hood, and pretty much everywhere else there’s been a mass shooting in the US. Ebert also mentions a guy he knows in Chicago who was carrying a pistol, and showed it off to Ebert and a mutual friend in a bar. That can’t be; guns are all but banned in Chicago, and carrying them is right out. Ebert even brings up the recent shooting in Toronto. Canada has stricter gun controls than the US (and has a de facto ban on carry), and yet those stricter laws didn’t stop that shooting.

For that matter, Australia has even tougher gun controls, and yet the violent crime rate there is greater than in the US. In fact, the gun crime rate increased after gun control measures were implemented.

Eliot Spitzer, the erstwhile governor of New York, who resigned in disgrace amid a prostitution scandal (he’d spent ~$80,000 on call girls while he was NY’s Attorney General and governor), felt the need to chime in, too. Apparently, the shooting was “inevitable,” and we shouldn’t be shocked given our lax gun laws. He hits all the Brady and CSGV talking points: we should ban “military-style assault weapons” and “assault clips holding more than 10 rounds,” and we should require microstamping. Unlike the federal Assault Weapons Ban of ’94, New York’s AWB had no sunset provision; standard capacity magazines and weapons that have more than one “scary” cosmetic feature are still banned there (unless you had them prior to the ban, in which case they’re just fine). Microstamping is infeasible; the cost alone is prohibitive, and it could be defeated by simply swapping the firing pin out. Even setting that aside, microstamping would have affected the shooting in Aurora not at all. The shooter was the only one armed, and he just waited for the police to show up. There’s no question what guns the casings in the theater came from. Spitzer wants “meaningful gun control,” like what other nations have put in place. Too bad the gun control those other nations have doesn’t actually make anyone safer (see above!).

Amy Sullivan joins Bloomberg in demanding an “honest debate about guns.” Of course, Bloomberg has made his disdain for the Constitution clear in the past (what with his very own anti-gun organization (MAIG), and his blatant, repeated, and institutionalized violations of the Fourth Amendment (stop-and-frisk)). Sullivan immediately starts blasting the NRA for opposing the UN Small Arms Treaty, since it wouldn’t supersede the Constitution, and would only apply internationally. Well, if that’s the case, why would she use the Aurora tragedy to advocate for this treaty? After all, if it’s only international and wouldn’t supersede the Constitution, bringing it up seems like a complete non sequitur. She doesn’t bring up any domestic gun control ideas at all (she feigns horror that Congress has done nothing in the two years since one of their own was shot in a similar mass shooting in Arizona); all she talks about for the entire last half of her piece is the UN Small Arms Treaty.

Even the New York Post gets in on the blood-dancing game. They do admit that this shooting is no reason to get rid of the Second Amendment, but they also say, “there is no legitimate reason for gun-sellers to be peddling militarized accessories, like high-capacity ammunition magazines, speed loaders and such.” I know it might be hard to believe, but aside from New York, Massachusetts, New Jersey, California, Maryland, and Connecticut (I think that’s all of them), “high-capacity” magazines are perfectly legal. In fact, they’re not high-capacity at all; 20- and 30-round magazines are standard for the AR-15. As I understand it, Holmes did have a 100-round drum magazine (which don’t come cheap). For that matter, 15+ round magazines are standard for pistols (my P226 holds 18 rounds of 9mm in each magazine); I think the .40 S&W Glock models Holmes used both come standard with 15-round magazines as well. In fact, the large magazine the shooter used here backfired; it jammed (something similar happend during Loughner’s shooting; his 30-round magazines for his pistol were more unwieldy than standard magazines, and his fumbling them provided an opportunity for people to attack him (IIRC, anyway)). If Holmes had used standard 30-round AR-15 magazines, I doubt he would have had the problems he did with his 100-round drum magazine.

The New York Daily News puts the blood on the hands of Obama, Romney, and the NRA (and not, you know, on the actual shooter). The editorial board demands gun registration (how gun registration would have stopped Holmes, I have no idea; the worst thing on his record before this was a traffic ticket, I think). They talk about how street-crime shootings dwarf the big massacres (in terms of body count), and if only we had laws limiting access to guns, this would magically stop. They are shocked that Holmes was able to drive around with his guns (how else are you going to get to a gun range, or get home from the store where you bought your guns?). And, of course, they clamor for a reinstatement of the AWB at the very least. They even bring up the Columbine massacre. Of course, they don’t point out that Columbine happened in 1999, right smack-dab in the middle of the ’94 AWB. If an AWB were going to stop mass shootings, wouldn’t it have stopped that one?

Actor/comedian Jason Alexander went on a long rant about the Second Amendment and gun control, and how rifles like the AR-15 shouldn’t be in civilian hands. He quotes Alexander Hamilton and Merriam-Webster on militias. He doesn’t, however, quote George Mason, who said, “I ask, sir, what is the militia? It is the whole people except for a few public officials.”  Alexander rants for a while, and trots out various canards, finally closing with this statement: “I’ll say it plainly – if someone wants these weapons, they intend to use them. And if they are willing to force others to “pry it from my cold, dead hand”, then they are probably planning on using them on people.” Now, the AR-15 is probably the most popular rifle in the US today; people use them for hunting, for target shooting, for home defense, for varmint control, and for shooting competitions. They buy AR-15s because they look cool, because they’re easy to use, because they’re modular, because politicians don’t want them to have them, and because it’s virtually identical to the rifles they used in the service. These rifles are rarely used in crimes (if you’re going to commit a crime, are you going to lug around a rifle, or are you going to stick a pistol in your waistband?).

Not all of the media coverage has been negative; CNBC points out that the forces agitating for gun control are now mostly impotent.

The shooting in Aurora was a tragedy. It was not, however, the nefarious work of the gun lobby, or the NRA, or politicians. It was the work of one man, who, in the words of Alfred, just wanted to watch the world burn.

My thoughts and prayers are with the victims and their families.

The anti-gunners, though, are just using this to try to drum up political support and donations so they can push their misguided views on the rest of us.

01/23/2012

Your tax dollars at work (4th amendment edition!)

by wfgodbold

I was curious about the genesis of the newest SCOTUS decision to come down the pipe, and you’ll be interested (leave me my delusions!) to know what I learned.

In the original case, U.S. v. Jones, Jones (who generally appears to be a misanthrope (not that that makes any difference to his civil rights)) moved to suppress evidence gathered when the police put a tracking device on his car and used it to see where he was going:

Jones also has moved to suppress the data obtained from an electronic tracking device-a Global Positioning System (“GPS”)-which law enforcement agents placed on his Jeep Cherokee pursuant to an Order issued by the Honorable Paul L. Friedman on September 16, 2005. In support of the motion, Jones advances two arguments. First, he contends that Special Agent Yanta’s affidavit in support of the application for GPS authorization lacked probable cause to believe that his vehicle “was in any manner being used for criminal activity.” (Def.’s Omnibus Mot. at 18.) Second, Jones asserts that the government placed the GPS device on his vehicle both after the Order authorizing its *88 placement had expired and while the vehicle was located outside of the issuing court’s jurisdiction. (See Defendant Jones’ Supplemental Omnibus Pre-Trial Motion at 3-6.) In response, while conceding the “technical” violations of the September 10, 2005 Order (Gov’t’s Omnibus Opp’n at 52 n. 12), the government contends that the placement of the GPS device was proper-“even in the complete absence of a court order”-because Jones lacked a reasonable expectation of privacy in the whereabouts of his vehicle. (Id. at 51.)

U.S. v. Jones, 451 F. Supp. 2d 71, 87-88 (D.D.C. 2006) aff’d in part, rev’d in part sub nom.U.S. v. Maynard, 615 F.3d 544 (D.C. Cir. 2010) aff’d in part sub nom.U.S. v. Jones, 10-1259, 2012 WL 171117 (U.S. 2012) [emphasis added]
So this whole case came about because the DC cops let their warrant expire and then bugged the guy’s car while it was outside their jurisdiction. After they got caught, they argued that they didn’t really need a warrant in the first place.
The case was then appealed, granted certiorari, and finally heard by the Supreme Court.
Almost five and a half years after the end of Jones’s original trial (which itself was for actions the defendant took between 2003 and October 2004).
And all because the police tried to fast-talk their way out of something they knew wasn’t going to work.
Sure, the police might screw you over, but unless you can afford to pay your lawyer for the better part of a decade, you’re not going to prevail.
And the government? They don’t care if they can’t afford their own appeals; after all, you’re the one footing their bill.
07/15/2011

This whole “we can force you to give up your encrypted files w/o violating your rights” crap is old news

by wfgodbold

I mean, I complained about it on twitter three whole days ago (an eternity in internet time)! Where were the rest of you!

Seriously, though. The idea that the police can make you give them your password is ludicrous; if they have probable cause, they can get a warrant, just like for your house.

And just like with your house, if you don’t let them in, they’re perfectly capable of busting down the door.

It’s just that in this case, “busting down the door” is a wee bit more difficult.

I am curious, though. If you refuse to comply, can you be held in contempt and jailed forever? Or at some point does that violate your 8th amendment rights?

07/03/2011

And so privacy is sacrificed on the altar of “efficiency”

by wfgodbold

By so-called “conservatives” in the comments at this Hot Air piece on whether the police should be required to get warrants to put tracking devices on cars.

I understand that public roads are public, and we have no expectation of privacy while driving on them; that’s why the police don’t need a warrant to tail persons of interest.

Being subject to tailing is a far cry from having every movement monitored without any effort by the police, though; if they want to tail someone, they have to expend far more resources than just sneaking up on your car in the middle of the night and planting a tracking device.

If the police want to spy on what goes on in a person’s house, they either must observe from public land, or get a warrant; cars are also private property, and the police should be no more permitted to plant devices without warrants than they can bug your phone line without one.

We need a Bureau of Sabotage.

06/29/2011

Just when you thought the TSA couldn’t get any more despicable…

by wfgodbold

It turns out that the backscatter scanning machines have been linked to cancer clusters in TSA workers (H/T Sebastian).

Looks like opting out of the scanning is safer for everyone!

I do find it hard to muster much sympathy for the TSA goons, though; you claim that making a 95 year-old woman remove her adult diaper is “following procedure” and you deserve what you get.

The TSA has never stopped an attack.

It has only reacted, tightening “security” in the hopes of looking like they’re doing something. After all, if people realized that the TSA doesn’t actually do anything useful, the agents would lose their cushy government jobs.

06/13/2011

What could possibly go wrong?

by wfgodbold

The FBI have been given the okay to “push privacy bounds.”  (H/T Andy Levy)

Great.

The final paragraph reads:

Ms. Caproni said the new manual would adjust the definition of assessments to make clear that they must be based on leads. But she rejected arguments that the F.B.I. should focus only on investigations that begin with a firm reason for suspecting wrongdoing.

This is insane.

Sure, why shouldn’t the FBI restrict itself to “investigations that begin with a firm reason for suspecting wrongdoing”?

So any tenuous reason will do?

Probable cause? What’s that?

06/11/2011

To further clarify my opinion on no-knock warrants and overcriminalization

by wfgodbold

Linoge and Old NFO bring up a couple of points in the comments to my post on no-knock warrants, so I’m going to take more space here to hash out some things.

I mainly think that no-knock warrants in and of themselves are more a symptom of the problem than the actual problem itself; the root cause is the criminalization of damn near everything.

We are often told that ignorance of the law is no excuse; this statement has two main problems.

First, it ignores mens rea, one of the key components of common law.

And the main problem with the claim that “ignorance of the law is no excuse,” is that Title 18 of the United States Code (the criminal & penal section) is 2,725 sections long.

Two thousand. Seven hundred. And twenty-five.

For the most part, ignorance of the law is rational!

Search warrants are required to be reasonable and specific; if you look at the warrant the Dept. of Ed. used to justify their SWAT raid the other day, it’s quite specific.

It specifies practically every item that someone’s house would contain (especially when it gets down to the electronic equipment)!

If everything but the clothes on your back (probably) and your furniture (maybe) are to be seized by the police, then practically anything you do between the announcement that the cops are there with a warrant and when you answer the door could be destruction of evidence.

So obviously, the police have no choice but to bust down your door and charge in with rifles at the ready; you’re destroying evidence!

I don’t see any effective way to reduce the number and scope of the laws on the books; any time something bad happens, there’s a big clamor for new laws to make this tragedy (whatever it is) the last of its kind, so won’t you please make bullying illegal, or making fun of people on the internet illegal, or whatever, it’s for the children!

And since everyone loves children, the laws get enacted, even though they’re badly written and vague and overbroad.

Then the rest of us are stuck rationally ignorant, hoping that we’ve done nothing to draw Johnny Law’s attention to ourselves, and that no SWAT team will kick in our doors in the middle of the night.

If the man goes through your life with a fine-toothed comb, he’ll find something that you did that broke the law, and then he’ll crucify you for it. The war on drugs has made this painfully evident, and with the ever-increasing number of federal agencies with police powers and SWAT teams, the war on everything else will take care of the rest of us.

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