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Jun. 16th, 2006 02:19 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
somedaybitchGlenn Reynolds discusses the recent SCOTUS decision a bit here.
i think SCOTUS is high. that can be the only exlanation for this. there is no backing, either ethically, morally or legally, for law enforcement's enforcing laws that are broken, if, to do so, they themselves are allowed to break the law. that's the whole fucking point. i'm gobsmacked at this decision. granted, the same as Reynolds i've only read a summary bit, but i really can't see how fuller context would make this decision any less abhorently stupid.
as Reynolds pointed out, I agree that their legal argument is defensible and doesn't seem to push to into new ground with regards to exclusion of evidence, given that this case specifically deals with warranted searches, and what is at issue is how "followed" the knock-and-notice rule is followed, ie; how long after the "notice" does law enforcement wait, if they even announce at all. of course, there's the caveat that i'm not a constitutional attorney. that said, i have to strenuously agree with Glenn's comment that it's morally indefensible.
and that said, i appreciate that the justices did include in their reasoning the dangers inherent to law enforcement during the service of search warrants, principally to their lives, but also to the potential for destruction of evidence. what concerns me is the Court's willingness to rely on the pressures to follow the rules coming from law enforcement themselves. from the SCOTUS Blog:
again, i get his point, that there are [or should be] other options than the automatic one of the suppression of evidence, and yet....i know cops. there are, probably contrary to public perceptions, very few that are intentionally dirty, but there are two other categories that, i think, are arguably more dangerous because they are more prevalent.
the first is the stupid cop, or, you know, not knowing something yet cop. they are simply either too dumb or too obtuse to worry about violating constitutional protections against unlawful search and seizure.
the second, and the one that actually worries me most, is the cop that is genuinely good, but too eager to catch bad guys. they're the ones that, strictly through my own anecdotal observations, do the most damage to civil rights. they see no moral or ethical problem with knowingly violating a suspect's civil rights if the suspect doesn't know the rights are being violated; for example: making a consensual contact in the field and asking the subject if their person can be searched, knowing that the person is too stupid to know they can refuse. yes, that person is probably a doper or a guy out trolling for a car or a business to burglarize; yes, the officers are good at stopping those kinds of people; yes, those stops, in a "Broken Window Theory" kind of way are preventing crime and protecting the public welfare; BUT, they are violating the spirit of the law while following its letter. for me, that's the more morally repugnant action.
this decision seems to rely too heavily on law enforcement's willingness to believe that part of their job is also to protect the civil rights welfare of the public, when i have personally rarely seen that to be the case; and not in an intentional oppression kind of way, but in a casual 'if they're too stupid to know they can refuse, and they know they are doing something illegal or in possesion of something illegal, then they deserve it' kinda way.
taking advantage of an individual's lack of civic knowledge is the most insidious kind of behavior for a representative of the government to engage in. the public is not a walking target waiting to get arrested. they are our commmunities and we have a moral duty to protect them that goes beyond their physical well being.
it is, i have always believed, government's obligation to ensure that the public is given a chance to follow the rules. that's why there are stop signs, and speed signs, and "no turning" and "no parking", and mailers, and notices in the papers, and public hearings, etc, etc, etc. but i don't think government follows that obligation out enough at the local level vis-a-vis ensuring that the public knows that it has rights of refusal under specific circumstances. it needs to be our JOB to ensure the public's rights are defended and protected.
the reason cops follow the rules is PRECISELY BECAUSE any evidence obtained can get tossed if they don't. to take that away, or lessen it, is to invite a degredation of the 4th Amendment.
bad SCOTUS. no donut.
i think SCOTUS is high. that can be the only exlanation for this. there is no backing, either ethically, morally or legally, for law enforcement's enforcing laws that are broken, if, to do so, they themselves are allowed to break the law. that's the whole fucking point. i'm gobsmacked at this decision. granted, the same as Reynolds i've only read a summary bit, but i really can't see how fuller context would make this decision any less abhorently stupid.
as Reynolds pointed out, I agree that their legal argument is defensible and doesn't seem to push to into new ground with regards to exclusion of evidence, given that this case specifically deals with warranted searches, and what is at issue is how "followed" the knock-and-notice rule is followed, ie; how long after the "notice" does law enforcement wait, if they even announce at all. of course, there's the caveat that i'm not a constitutional attorney. that said, i have to strenuously agree with Glenn's comment that it's morally indefensible.
and that said, i appreciate that the justices did include in their reasoning the dangers inherent to law enforcement during the service of search warrants, principally to their lives, but also to the potential for destruction of evidence. what concerns me is the Court's willingness to rely on the pressures to follow the rules coming from law enforcement themselves. from the SCOTUS Blog:
"...In articulating a second theory as critical to the Hudson decision, the Court made clear that its views may be changing on the value of the exclusionary rule in deterring police misconduct. It exhibited a greater willingness than it has in the past to trust police officers to avoid constitutional violations, and a belief that that trust can better be reinforced by means other than judicial suppression of evidence that is vital to successful criminal prosecutions. This theory was most vividly in display in Justice Scalia's analysis of present-day deterrents that may keep police in line. "It seems to us not...true, as Hudson contends, that without suppression there will be no deterrence of knock-and-announce violations at all," Scalia wrote..."
again, i get his point, that there are [or should be] other options than the automatic one of the suppression of evidence, and yet....i know cops. there are, probably contrary to public perceptions, very few that are intentionally dirty, but there are two other categories that, i think, are arguably more dangerous because they are more prevalent.
the first is the stupid cop, or, you know, not knowing something yet cop. they are simply either too dumb or too obtuse to worry about violating constitutional protections against unlawful search and seizure.
the second, and the one that actually worries me most, is the cop that is genuinely good, but too eager to catch bad guys. they're the ones that, strictly through my own anecdotal observations, do the most damage to civil rights. they see no moral or ethical problem with knowingly violating a suspect's civil rights if the suspect doesn't know the rights are being violated; for example: making a consensual contact in the field and asking the subject if their person can be searched, knowing that the person is too stupid to know they can refuse. yes, that person is probably a doper or a guy out trolling for a car or a business to burglarize; yes, the officers are good at stopping those kinds of people; yes, those stops, in a "Broken Window Theory" kind of way are preventing crime and protecting the public welfare; BUT, they are violating the spirit of the law while following its letter. for me, that's the more morally repugnant action.
this decision seems to rely too heavily on law enforcement's willingness to believe that part of their job is also to protect the civil rights welfare of the public, when i have personally rarely seen that to be the case; and not in an intentional oppression kind of way, but in a casual 'if they're too stupid to know they can refuse, and they know they are doing something illegal or in possesion of something illegal, then they deserve it' kinda way.
taking advantage of an individual's lack of civic knowledge is the most insidious kind of behavior for a representative of the government to engage in. the public is not a walking target waiting to get arrested. they are our commmunities and we have a moral duty to protect them that goes beyond their physical well being.
it is, i have always believed, government's obligation to ensure that the public is given a chance to follow the rules. that's why there are stop signs, and speed signs, and "no turning" and "no parking", and mailers, and notices in the papers, and public hearings, etc, etc, etc. but i don't think government follows that obligation out enough at the local level vis-a-vis ensuring that the public knows that it has rights of refusal under specific circumstances. it needs to be our JOB to ensure the public's rights are defended and protected.
the reason cops follow the rules is PRECISELY BECAUSE any evidence obtained can get tossed if they don't. to take that away, or lessen it, is to invite a degredation of the 4th Amendment.
bad SCOTUS. no donut.
