Tuesday, June 21, 2016

Personal Rights vs Personal Safety

The balance point between maintaining the rights of citizens and protecting other citizens is amazing.  We all want to be safe and yet many strive to tie the hands of our police officers, FBI, etc.


CNN Sotomayor Writes Strong Dissenting Comments
4th Amendment Definition

44 comments:

Anonymous said...

It's a basic asymmetry. While I have a right to bear arms, I don't have a right to be free from gun violence. How did the framers not put that in the constitution?

--Hiram

Sean said...

Sotomayor is correct in this case (and in her larger social commentary). The officer went on a fishing expedition without probable cause.

John said...

Actually she was wrong. Since the court ruled against her...

Sean said...

Nothing says liberty like having the cops stop you for no reason.

John said...

How does that old saying go?

"If it looks like a duck, quacks like a duck, swims like a duck... It is likely a duck."

or

"If he consorts with criminals and spends time at a drug house... He is likely a criminal."

John said...

As is the purpose of this post... There are trade offs:
- Freedom to own AR15 vs Some People Dying
- Freedom from Searches vs Some People Dying
- Freedom from NSA Snooping vs Some People Dying
- Freedom to Make Babies vs Babies Raised Poorly

Sean said...

"If he consorts with criminals and spends time at a drug house... He is likely a criminal."

That ain't the way it works in America.

John said...

The question though is if we truly are dedicated to keeping people safe and eliminating dangerous drugs from our communities. Should we let things shift slightly?

How much personal freedom are the lives of our children worth?

jerrye92002 said...

My problem is that I never want to hear that "he got off on a technicality." In this case the guy DID have an outstanding warrant and WAS carrying drugs (for sale?) and was consorting with known criminals, which was (not clear on why) illegal. It is right he should be in jail (or whatever).

I've long favored a "two step" justice system, with "more justice, less law." That is, we first take the defendant into court and determine, strictly from the facts, whether he did the crime in question, to what degree, etc. NO evidence is excluded, since we want the truth. Guilt is ascertained and the sentence given. THEN, if warranted, we have a second trial and we determine whether the police violated simple procedure, or violated the defendant's rights, or were just flat out "trying to get him" on anything they could. If true, then the police involved are penalized according to the severity of the violation.

jerrye92002 said...

You are arguing that people, right now today, have the "right" to gun down innocent children. Nonsense. We have laws against that sort of thing. And if someone tried to gun down my child, I wouldn't mind in the least if somebody with a big, ugly gun put a prompt end to the attempt.

Sean said...

"Should we let things shift slightly?"

What does "slightly" mean? What is the standard a cop needs before they can stop you, demand your identification, and search your person or vehicle? When should the government have access to your phone calls or e-mails?

John said...

"Freedom to own AR15 vs Some People Dying"

Simple fact: If there were no AR15's in the public space... No one would be killed with an AR15...

Now they maybe stabbed, run over, shot with a different gun, poisoned... But they would not be killed with an AR15.

John said...

Sean,
That is a good question. I have nothing to hide and I look like a boring middle aged Father, so I am pretty flexible. And if I need to have people search my car once in awhile to help put criminals and terrorists in jail, and to keep kids safe... No problem.

I mean look at what I go through to just get on a plane...

Sean said...

"I have nothing to hide"

I don't understand how a person who won't trust the government to administer food stamps or provide health care to poor people will give that same government the right to come and search your property or read your e-mails. That same government has plenty to hide from you.

"I look like a boring middle aged Father"

We don't have nearly as much to worry about as others, but I'm still not up for signing away my rights.

John said...

To me it is a matter of incentives. The police and FBI are praised if crime and terrorism are reduced, and embarrassed if they fail. They have a desire to do things as effectively as possible, and giving them more information and latitude makes it hard for criminals and terrorists to organize and hide.

What exactly are the welfare administrators praised for? If they give out more money to more people is that success? What is failure? Do they have any incentive to weed out fraud or coach people into self sufficiency? Do they have any incentive to become more effective or efficient? I just don't see it...

Well as long as you are okay with the fact that some "criminals will get off on technicalities", some criminals will stay free, some terrorists will attack people at night clubs, and victims will suffer/die in part because of that freedom you cherish.

Did you ever watch "Person of Interest"? The good and bad of big brother trying to help society. Checkout this for folks who blog about something even more pointless

Sean said...

"criminals will get off on technicalities"

So we've reduced the Constitution to a "technicality"? Fascinating.

"victims will suffer/die in part because of that freedom you cherish."

Why is it OK to give the government broad powers to make sure folks don't get shot up in a nightclub, but not OK to give the government broad powers to make sure folks can get the cancer treatments they need?

Laurie said...

Supreme Court Says Illegal Police Stops Are OK as Long as They Find an Outstanding Warrant Afterward

from the end of Drum's long post "This will never affect me. It will never affect anyone on the court. But will it affect the poor and the nonwhite in far greater numbers than anyone else Oh yes."

It seems to me that police doing their job correctly would be following lawful procedures to investigate people living in the suspicious house.

John said...

Sean,
I want safe streets and cost effective law enforcement. The vast majority of us citizens benefit from this and it improves our society. Tying the hands of the police officers and NSA makes achieving these goals much harder.

Using public money to ensure someone who did not pay their health insurance bill gets their cancer treatments encourages the wrong behaviors. We want people to work hard in our free schools, succeed academically, get a good job, buy health insurance, pay taxes and contribute positively to our society.

Did that clarify the difference?

John said...

I have to wonder how many violent and/or drug dealing criminals are free right now because of "lawful procedure"? I wonder how many people die each year to protect the rights of suspicious looking people in our society?

"Oh... Look at the creepy looking white guy in the white van near the park full of kids... Sorry. We can not ask him for an ID because he used his turn signal correctly..."

"Oh... Look at all those people leaving the bar at closing time. Well we can't breathalyze unless they swerve."

"Oh look at the guy standing across the road from school that the druggy looking kids stop by on their way out. Can't check him for drugs because he hides the transfer well."

7.8 million warrants outstanding and 11 million residents in the country, in part because the hands of law enforcement are pretty tightly tied.

"Then he demanded Strieff's ID, ran a background check, and discovered that Strieff had an outstanding warrant for a traffic violation. Bingo. That was enough to arrest him and conduct a search, which turned up some meth."

"The States and Federal Government maintain databases with over 7.8 million outstanding warrants, the vast majority of which appear to be for minor offenses.... The Department of Justice recently reported that in the town of Ferguson, Missouri, with a population of 21,000, 16,000 people had outstanding warrants against them."

jerrye92002 said...

"So we've reduced the Constitution to a "technicality"? Fascinating." No, we have corrupted it. The Constitution protects us against /unreasonable/ search and seizure. That means police need an item to be in plain sight, to have your permission, to have exigent circumstance or probable cause, or have a warrant. That's a lot of loopholes for the police but the fundamental protection is there. The problem comes when it gets to court and some evidence is "suppressed" because it was supposedly unlawfully searched and seized. That's where the "technicality" comes in. We found the body, with your knife in her and your prints all over the knife. Just because you stashed it in the closet should not exclude the pertinent evidence and you ought to be convicted. THEN we can have a trial and penalize the police for violating your 4th amendment rights. Or give them a medal.

jerrye92002 said...

"Why is it OK to give the government broad powers to make sure folks don't get shot up in a nightclub, but not OK to give the government broad powers to make sure folks can get the cancer treatments they need? "

Because the first duty of government is to protect us from one another-- public safety and security. Your second part is one where government is the coercive element by which one person DOES harm another. The one person's need for cancer treatment requires some other person-- a taxpayer or physician-- to pay for it, directly or indirectly.

Sean said...

"Did that clarify the difference?"

It just provided more evidence that you're not a small government conservative; you're a really big government authoritarian. Your demand for people to be productive and the steps you would take to enforce it are far more out of Stalin or Mao than it is out of Reagan.

The same Constitution that you cite when someone refuses to bake a cake for a gay couple is the one that protects us from the government snooping on us in all aspects of our lives. Does that sometimes create unintended consequences? Sure. But it's a lot better than the alternatives.

You may be willing to have police stop you when you're walking down the street doing nothing wrong, but I'm not. (And let's face it, as a middle-aged white guy, you've got about zero chance of being considered a suspicious looking person, so you don't give a hoot about what that means for others.)

"I have to wonder how many violent and/or drug dealing criminals are free right now because of "lawful procedure"? "

Perhaps you should check to see what the conviction rates for government prosecutors are (federal prosecutors win over 90% of their cases, and in many states, they are in the 80+% range).

"7.8 million warrants outstanding and 11 million residents in the country, in part because the hands of law enforcement are pretty tightly tied."

Specifically, how are their hands tied and how would you untie them? Sources please.

The reason so many warrants are outstanding is because you have places like Ferguson that treat the criminal justice system as a revenue center instead of a means to keep the public secure. Go back to the DoJ report on the Ferguson PD for details on that.

Sean said...

"That's a lot of loopholes for the police but the fundamental protection is there. "

Yet, we have police (like in this case) who can't even operate with the significant leeway that they do have. Under this ruling, police officers could set up a checkpoint near a suspect property and check every car that comes down the street or every person that walks down the sidewalk.

jerrye92002 said...

Really? What would be the "probable cause" allowing them to do that?

"Your demand for people to be productive and the steps you would take to enforce it..."

What steps? All we are saying, I believe, is that if you are able and refuse to work, then government isn't going to pay you to persist in your idleness. You remain completely free to do so.

Sean said...

"What would be the "probable cause" allowing them to do that?"

The officer admitted he had no probable cause in this case, either. Even Thomas admits that in his ruling.

John said...

Jerry,
I agree. I never understand when the more Liberal folks see expecting people to live with the consequences of their choices as some form of draconian torture.

Sean,
Of course the officer had probable cause or he would not have wasted his time pulling the car over. His probable cause just did not meet the pretty high threshold that is legally required.

When I questioned how many bad guys are still on the street harming people because of the high legal requirements? I meant all those folks how don't even get arrested because the officer clearly needs to see them break the law before they can get involved. And if the criminal is smart, appears to be suspicious, but breaks no laws. The officer needs to drive on by.

John said...

"Does that sometimes create unintended consequences? Sure. But it's a lot better than the alternatives."

Please elaborate... I am not sure a snoopy government is worse than missed terrorist attacks, drug dealers who continue selling, perverts that keep molesting/killing, drunk driver killing people, etc.

On the other hand I am happy that you are ready to stand up for religious freedom and gun rights now. Because it sounds like the rights of the individual are more important than the safety of the community.

As usual, I can go either way on this one.

Sean said...

"Of course the officer had probable cause or he would not have wasted his time pulling the car over. His probable cause just did not meet the pretty high threshold that is legally required."

If it doesn't meet the threshold, it's not "probable cause". (And "probable cause" is in fact, a very low threshold.) Again, even Justice Thomas said that there was no legal justification for the stop in the case and the police department didn't defend the stop. Please read the decision.

Sean said...

"On the other hand I am happy that you are ready to stand up for religious freedom and gun rights now. "

Never been opposed to either.

Sean said...

"Of course the officer had probable cause or he would not have wasted his time pulling the car over."

In fact, the standard for stopping someone is even lower than "probable cause" - it's "reasonable suspicion" -- and the officer failed to meet that standard in this case.

jerrye92002 said...

Perhaps an example would be worth discussing. Vicksburg, Mississippi, is a "dry town." You can get a wine with your dinner, but no bars. All the "juke joints" are outside town, out in the woods a mile or two. You would think the sheriff could occasionally sit across the road and, when somebody comes out alone, late, and gets in a car they could be stopped before they got on the road, on "suspicion" they were drunk. NO, that's not "reasonable suspicion."

In Minnesota, same rules, but our DWI laws are such that someone was recently arrested on their NINTH DWI! The law should be sufficiently punitive to deter at least repeat offenders, if not the initial violation, and obviously ours are not. Add to that the large number who are not stopped at all and you get Death on the Highway.

I think the threshold for a stop needs to be reasonably high, but throwing away the obvious opportunities defies common sense. And the penalties, at least for DWI, need to be severe enough to strongly deter at least second offenses, if not the first. In some countries a first offense means you lose your car, you lose your license and you go to jail. There are very few first offenders.

Sean said...

"Perhaps an example would be worth discussing. "

Aren't we already discussing one? Or do you want to talk about a different one because everyone admits the police had no reason to make the stop?

"In Minnesota, same rules, but our DWI laws are such that someone was recently arrested on their NINTH DWI! The law should be sufficiently punitive to deter at least repeat offenders, if not the initial violation, and obviously ours are not. "

That's got nothing to do with the standard for making a stop -- it's about how you punish them once they are convicted.

John said...

I am just happy SCOTUS ruled in a common sense manner on this one. And that it was so clear that even one of the Liberal Justices switched sides. If Scalia had been there this would have been a 6:3 vote. Definitely a majority unlike some of the other questionable 1 vote rulings...

jerrye92002 said...

OK, I don't know the exact details here, but if you want to use that as the example then I have to ask: Since this guy DID have an open warrant, WAS dealing drugs and more, what would you have the police do? Ignore him and let him go on his way?

Sean said...

"OK, I don't know the exact details here"

OK, let's review the details. Here they are, as laid out by Thomas's opinion:

"This case began with an anonymous tip. In December 2006, someone called the South Salt Lake City police’s drug-tip line to report “narcotics activity” at a particular residence. Narcotics detective Douglas Fackrell investigated the tip. Over the course of about a week,
Officer Fackrell conducted intermittent surveillance of the home. He observed visitors who left a few minutes after arriving at the house. These visits were sufficiently frequent
to raise his suspicion that the occupants were dealing drugs.

One of those visitors was respondent Edward Strieff. Officer Fackrell observed Strieff exit the house and walk toward a nearby convenience store. In the store’s parking lot, Officer Fackrell detained Strieff, identified himself, and asked Strieff what he was doing at the residence.

As part of the stop, Officer Fackrell requested Strieff’s identification, and Strieff produced his Utah identification card. Officer Fackrell relayed Strieff’s information to a
police dispatcher, who reported that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell then arrested Strieff pursuant to that warrant.

When Officer Fackrell searched Strieff incident to the arrest, he discovered a baggie of methamphetamine and drug paraphernalia.

The State charged Strieff with unlawful possession of methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that the evidence was
inadmissible because it was derived from an unlawful investigatory stop. At the suppression hearing, the prosecutor conceded that Officer Fackrell lacked reasonable suspicion for the stop but argued that the evidence should not be suppressed because the existence of a valid arrest warrant attenuated the connection between the unlawful stop and the discovery of the contraband."


Sean said...

Kagan's dissent closes with an apt summary of what this decision means:

The majority’s misapplication of Brown’s three-part inquiry creates unfortunate incentives for the police—indeed, practically invites them to do what Fackrell did here. Consider an officer who, like Fackrell, wishes to stop someone for investigative reasons, but does not have what a court would view as reasonable suspicion. If the officer
believes that any evidence he discovers will be inadmissible, he is likely to think the unlawful stop not worth making—precisely the deterrence the exclusionary rule is meant to achieve. But when he is told of today’s decision? Now the officer knows that the stop may well yield admissible evidence: So long as the target is one of the many millions of people in this country with an outstanding arrest warrant, anything the officer finds in a search is fair game for use in a criminal prosecution. The officer’s incentive to violate the Constitution thus increases: From here on, he sees potential advantage in stopping individuals without reasonable suspicion—exactly the temptation the exclusionary rule is supposed to remove. Because the majority thus places Fourth Amendment protections at
risk, I respectfully dissent.

John said...

Jerry,
That is the question of the day...

Officer suspects citizen.
Citizen does nothing illegal.
Officer asks citizen for ID.
Citizen freely gives it to Officer.
Officer run check and finds warrant, arrests citizen and finds drugs.

I think Sean and crew are concerned that police will abuse their power and start fishing in high risk pools full of shady people for those with open warrants... You know that slippery slope argument we all like to use when it fits our view.

John said...

"majority’s misapplication of Brown’s three-part inquiry "

When I read this... I think what a sore loser... This wasn't even a 1 justice decision...

Cause we all know how suspect those one justice decisions are... :-) That is unless they fall your way... :-)

John said...

Exclusionay Rule

Sean said...

"Officer suspects citizen.
Citizen does nothing illegal.
Officer asks citizen for ID.
Citizen freely gives it to Officer."

Not how it happened. Read the case. The officer *detained* Strieff without reasonable suspicion. It wasn't just a friendly chat and Strieff volunteered his information.

It should also be pointed out that the Utah State Supreme Court -- not exactly a hotbed of liberalism -- unanimously ruled in Strieff's favor on this case.

jerrye92002 said...

There must be something I'm not getting, here. "Citizen did nothing wrong"? The man had an outstanding arrest warrant! He was supposed to be arrested on sight! And of course when you are arrested they search you. Whatever they find is, as far as "justice" ought to be concerned, fair game.

But back to my question: Let us assume for the sake of argument that the circumstances leading to the arrest did not create grounds for a search of the man's person. But the drugs were found, nonetheless, so what does "justice" require? Shouldn't he be penalized for the drug possession? Isn't the officer's offense an entirely different matter, to be tried and adjudicated on its merits? Would not criminal prosecution be MORE effective at stopping officers from disregarding civil rights than the exclusionary rule that puts criminals back on the street?

John said...

Jerry, Makes sense to me.

John said...

Sean,
And yet the court, appeals court and SCOTUS ruled against him. 3 courts to 1 and only SCOTUS matters.

John said...

SCOTUS Opinion

"Narcotics detective Douglas Fackrell conducted surveillance on a SouthSalt Lake City residence based on an anonymous tip about drug activity. The number of people he observed making brief visits to the house over the course of a week made him suspicious that the occupants were dealing drugs. After observing respondent Edward Strieff leave the residence, Officer Fackrell detained Strieff at a nearby parking lot, identifying himself and asking Strieff what he was doingat the house. He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was derived from an unlawful investigatory stop. The trial court denied the motion, and the Utah Court of Appeals affirmed. The Utah Supreme Court reversed, however, and ordered the evidence suppressed."