16 May 2011

Warrants are so quaint

Kentucky v King, in which eight of our most wise and distinguished jurists decided that the police can manufacture their own exigency, is outrageous. (Read about that doozy here, here and here.)

What scares me is that it's not even the basest violation of the 4th Amendment in the last week.
Popehat | Patrick | How Could I Go Back To School After That And Pledge Allegiance And Sit Through Good Government Bullshit?

According to the Indiana Supreme Court, these words:
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.
are an inkblot on the Constitution, a random jumble of squiggly lines which mean nothing.

How else to explain Barnes v. State, in which the court upheld a battery conviction against Richard Barnes for shoving a police officer who had entered Barnes’ home illegally? The court held that society’s interest in peaceable relations between ruler and subject outweigh Richard Barnes’ right to be secure in his person, house, papers, and effects.

Apparently Barnes should have called the police to report that a strange policeman had broken into his home.
Scott Greenfield, to whom Patrick links, has this to say:
The case involved a domestic dispute, where the defendant was confronted by police outside his home. There was no basis to arrest him, any more than there is a basis to arrest a man any time he and his wife have an argument, and so the defendant went inside. He refused the police entry, and when they forced their way in, pushed an officer up against a wall. For that, he was charged with misdemeanor battery.

In defense to the charge, the defendant relied on his right to resist an illegal entry into his home, whether by police or anyone else. But the the entry was by police, officers of the state, made it of particular significance. This was the core evil against which the Fourth Amendment protects. Note the use of the past tense.

But this has now been declared archaic, a relic of a past age, of which modern man, and courts, no longer have need. The court says we have other, better, options than to resist: the exclusionary rule, internal police department review and disciplinary procedures and civil remedies. Perhaps this is a penumbra of the "new professionalism" we've heard so much about, and have yet to enjoy for ourselves.

The gist of the court's ruling, however, is that they're doing this for us, for the children, to safeguard us from violence. Resisting the police escalates violence, and enhances the likelihood that someone will be hurt. They just don't want us to get hurt, and if the front door to our homes is the cost of our safety, then so be it. As the court tangentially notes, it's not like law prohibiting police entry actually stops the police from doing as they please, so better to eliminate the law than mandate police adherence.
This is the same circular logic in Kentucky v Kling. Once the police have made a mistake, far better to let them continue with the mistake and trample on citizen's privacy than forcing them to deal with the original mistake.

It's the same reason we're told no-knock raids need to be used even for nonviolent offenses.  (The police choose to bring weapons in to the situation.  Once the weapons are there there is a risk of violence.  So better to use shock and awe to end things quickly.)

It's the same reason we're told we shouldn't be able to video record police on the job.  (Recordings of police misconduct erode public faith in the police, making crime more likely.  No, the misconduct isn't what erodes trust, just people knowing about it.)

In any of these situations the supposed problem could be solved if the police stopped screwing the pooch.  Instead we're told to surrender our rights to protect them from their own mistakes.

1 comment:

  1. What I find most appalling about the Indiana ruling (aside from the fact that it applies to me as an Indiana resident) is the fact that it looks to me like even if I don't believe the person claiming a right of entry is a cop, I have no right to resist. If they aren't a cop, then resistance is legal. If they are a cop, it's illegal. So all somebody needs is a cop costume and then they can break in at will, since it's illegal to forcibly resist warrantless entry by police. Dammit.

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