Wednesday, December 03, 2003

Via The Volokh Conspiracy comes the news that SCOTUS has unanimously reversed a 9th Circuit ruling concerning forcible entry in the execution of a warrant.

To sum things up, the police were serving a search warrant on a man's apartment that was suspected of selling drugs. They knocked & announced their presence, but after about 15 to 20 seconds they decided to bust down the door. They discovered crack cocaine, weapons & what they refer to as "...other evidence of drug dealing". The man in question was in the shower when all this occurred & claims he didn't hear the police knocking or announcing themselves & first realized it was in fact police when he went out of the bathroom still dripping from the shower.

He moved to have the evidence suppressed because he was in the shower & argued that the police had no authority to bust down his door unless he actually refused them admittence or a more reasonable amount of time had elapsed. The 9th Circuit agreed & suppressed the evidence.

Enter the Supreme Court. Citing previous decisions which the 9th Circuit failed to acknowledge they determined that the officers actions were Constitutionally permissable as a reasonable amount of time had elapsed & there was a danger of the evidence being destroyed. They further opined that the main reason for knock & announce warrants was to give a person the chance to avoid having their property damaged by a forced entry of the police in the execution of the warrant, & that if a reasonable amount of time passed where there was a danger of the evidence being destroyed then they were justified in busting the door down. They further chastised the 9th Circuit for the test the 9th Circuit came up with, saying there could be no all encompassing test to determine the reasonableness of a warrant & it must be examined on a case by case basis.

Say Uncle doesn't seem happy about this. He cites 18 U. S. C. §3109 as well as the 4th Amendment & concludes that 15 to 20 seconds is not necessarily a reasonable amount of time.

But I'm afraid my good buddy Say Uncle misses the point: it's not what's reasonable for us - it's what's reasonable for the government. Whether or not a reasonable amount of time to answer the door is 20 seconds, it is unreasonable to make agents of the government wait 20 seconds (in some cases less than 20 seconds) in order to bust in your door & steal your property.

Say Uncle seems to think that the courts should value the protections of the 4th amendment over the needs of the state to confiscate property it deems innappropriate. & if the courts were to actually respect the Constitution he'd be correct. But what he & I & evryone else seems to forget (at least from time to time( is that the courts themselves are a branch of government. They are not accountabe to the people (in most cases judges are appointed for life - not elected) & their interest does not lie with the people. Think a Federal judge is going to jeapordize an important source of revenue (income takes, property seizures in regards to the war on drugs, etc...) just because it conflicts with constitutional protections guaranteed to the people?

Nope. The courts aren't the answer - they're part of the problem.

SCOTUS will reverse a 9th Circuit decision that would add some additional safeguards for the people against unreasonable enrty by government agents but it will refuse to hear a case challenging the 9th Circuit's assertion that the 2nd Amendment entails no individual Right & therefore it is not incorporated under the 14th Amendment.

There is only one reason I can think of that adequately explains this series of events: the Supreme Court is concerned with maintaining the federal government's power & cares not about the Rights of the people. It assumes that because enough evidence of probable cause is presented to a judge to sign a warrant that you are guilty. I mean if innocence was presumed then the court wouldn't have said it was justifiable to bust down the door if a reasonable cop felt evidence may be destroyed. It's saying that because a judge signs a piece of paper, you must be guilty & any steps necessary to prove your guilt will be taken. reasonable is determined solely by the government & if you don't run to the door & answer it promptly then it'll be busted down & the cops will treat you as a threat. So when the King's men come a callin' you best step'n'fetch lest they bust your door & Lord knows what else.

To say that government agents cannot enter unless entry is explicitly refused unless there is danger to the life of someone else (i.e. in a hostage situation) is to say that the government's interests do not outweight your Rights. Few courts will say that because , as part of the government, it hinders their power just as much as the government agents the courts send to execute warrants in the first place.

Ya see, the courts are as politically minded as the legislature; they're just not nearly as overt about it. That is why they only hear 2nd Amendment cases which do not require a judgement on the 2nd Amendment itself. They wouldn't hear Emmerson or Haney, but they did hear Bean (which was about a due process claim, not the 2nd Amendment). They decided that the lower court in Bean erred because it did not have jurisdiction to restore Bean's firearm Rights in relation to a felony in Mexico (that felony was possessing ammunition).

Kevin of the Smallest Minority thinks that the courts can't duck the 2nd amendment issue forever. I don't know if he's correct in the literal sense, but for the past 65 years they've been doing a bang up job of it. But whether or not they can duck the issue forever (as in until the end of time) doesn't matter. What matters is they've ducked it yet again. They refuse to take any sort of stand. They do not want government power to regulate weapons diminished, but they don't want to risk the anger of the people by coming out & saying so in an opinion.

Clayton Cramer thinks we're better off not having the Supreme Court decide Silveira, as he thinks the case is flawed. Clayton is a good historian. His research (from what I have seen) is impeccable. But I'm afraid he's off base on more current affairs.
Clayton thinks the 3 questions involved in Silveira were too complex & too numerous. He would prefer a slower approach with one question at a time addressed & the scope of the question narrowed.

& on that Clayton & I disagree. I also disagree with those who say it'd be better to wait for a more favorable court to bring these issues up at all. Newsflash - there's no way of knowing if this court isn't going to be the most favorable for decades to come. Bush may get to appoint a justice or two, but think about it - Bush himself is in favor of gun control; do you really think he'd appoint a justice who would strike down a federal power just because it intereferes with the Rights of the people?

As to the complexity of the questions presented in Silveira I don't see how they could be any more simple & still deal with the issue. The questions were:

1; Does the 2nd Amendment guarantee an individual Right?

2; Does the 14th Amendment incorporate the 2nd Amendment?

3; Are "assault weapons" protected by the 2nd Amendment?

Seems pretty damn simple to me.

& yes, SCOTUS could have answered "no" to all the questions in Silveira. I don't doubt for a minute that "no" to all questions was a possible outcome. But we'd have at least known with some finality that we have no recourse through the legislature or the courts, & it would have woke some people up who think they'll never have to give up their "wabbit" gun.

But it's a non-issue because once again the Supreme Court has decided that it's easier to avoid the issue than tell us where they stand.


So what to do? Wait for the CATO lawyers' D.C. case to go up before SCOTUS? Hold our breath while we pray they grant cert? That's soon to be a non-issue as well because Sen. Hatch is determined to get his D.C. gunowners legislation through & effectively kill the CATO lawyers' case.

So while we're waiting for SCOTUS to hear a 2nd Amendment case we'll just have to be sure to rush to the door every time we hear a knock - otherwise the cops might bust the door down.

Geek With a .45 has an idea: pepper your elected reps (from any & all parties) with copies of the Bill of Rights.

Mike Vanderboegh tells a story about a more radical strategy to try to keep your congresscritters in line.

My suggestion? Pick one or the other. I seriously doubt either will have any positive effect on the going on in congress &/or the courts. I don't think we're gonna see anything close to freedom unless there's another revolution. The government has too much of a hold on power & it will not let it go easily.

But I would suggest that if anyone busts down your door, defend yourself. It may be cops & it may not. But if I can't check out their credentials & read the warrant to determine its validity before they enter, I'll assume they're either criminals in disguise or just criminals in uniform & attempt to repel them accordingly.

In summation none of this bodes well for the Republic, or its people.

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