Wednesday, July 4, 2012
ObamaCare
I know,this does not concern criminal procedure, but...it does concern the Constitution! So, that is close, I guess.
NEWS FLASH: Obamacare law ruled unconstitutional!
Yes, I know, everyone is saying the SCOTUS held the law constitutional. Well, they actually did...and they did not. The bottom line is the law stands as to a individual mandate that those who don't have health insurance must pay a "tax" up to the level of the cost of insurance. The court rejected that Congress has this power under the Commerce Clause...This is huge. The decision in effect says the the federal government does not have the power to compel an individual to engage in commerce. Had the court found the mandate constitutional under the Commerce Clause, then as one justice put it, they can force you to eat vegatables!.
The court noted that prior court decisions mandates that if there is a "reasonable" way to find an act of Congress constitutional, it is required to do so. So, to that end, the majority held that Congress has the power to tax and, irrespecive of the language in the law that the mandate is a "penalty", it is really a tax. Hell, the law orders and funds the hiring of 1600 new IRS agents to collect the money.....sounds like a tax to me.
So, if viewed as a "tax", the individual mandate is very, very narrowly constitutional.
The big deal of ObamaCare was what it did to the Medicaid program. This was the universal healthcare part of the law. ObamaCare would have changed the rules for who would be eligible for Medicaid. Currently, only the elderly, children, disabled, etc. who are at a fraction of the federal poverty level are eligible. ObamaCare mandates that EVERYONE who is at 133% or less of the federal poverty level is eligible for free health care!!! The cost a mere 3.3 trillion dollars over ten years. And here is the kicker, if the states don't enact the new provisions, the feds pull every dollar of Medicaid money sent to the state. The SCOTUS said, NO..... that is the federal government taking over the states. That is not an enducement, as Justice Roberts said, that's "a gun to the head". Unconstitutional. States are now free to decide if they want a huge new federal health care program or not, and if the decide no, then the existing medicaid program continues. This was the real meat of the law and it was found unconstitutional. The attention the individual mandate to buy insurance or pay a "tax" got all the attention, but the real impact would have come from this 3.3 trillion dollar part of the law.
The above is an oversimplified version of the decision. Unlike most, I have read the entire decision. What is the result?. Well, November 2012 will be critical. Those who support socialized health care call the decision a "big win". If you boil it down, the decision is not much of a win at all, and the limitations on the Commerce Clause which come out of this decision makesit pretty clear you are not going to federal prison if you refuse to eat your vegatables.
Wednesday, January 11, 2012
A New World
Assembly Bill 109. Here in California it has become very clear that the state is broke. It has actually been broke for about five years, but by creative budget manipulation, the states elected officials have been able to forestall the judgement day. The chickens are finding their way home and there is nothing that the politicians can do to to ignore the reality. Part of governor Jerry Brown's effort to deal with the costs of imprisoning the state's felons has resulted in the passage into law of a bill which shifts costs to the counties and off the state's general fund.
In short, what the new law does is shift so called non violent state prison inmates to county jails. County jails, in turn, have received some funding from the state to handle the costs. People I talk to that are in the business of babysitting felons say the money is not enough. What a surprise.
An unintended impact of this shift of prisoners is starting to emerge. Prison inmates prefer state prison to county jails. There is more room, better TV, more recreation, more educational opportunities, more vocational programs, better medical care, more gangs, and more drugs. State prisoners are not happy. They are forming groups, new gangs, and conspiracies and are far, far more dangerous than the average county jail population. It appears clear that assaults on county correctional officers is going to increase, and I predict this to be a dramatic increase. County jails are turning into small versions of state prisons without the tools or money to handle it.
Another impact is surfacing. County jails are intended to house minor offenders and major offenders awaiting trial. These inmates attitudes toward jail staff are significantly more cooperative when they are yet to be convicted. That is what is changing. Additionally, because the jails are now over crowded due to an influx of state prison inmates, local offenders are left outside. That is, local newly arrested criminals cannot be housed in jail. In one north state county, parole violators cannot be put in jail..... no room. In one case, the parole violater then assaulted the parole agent in the jail lobby and the jail STILL would to accept him as a prisoner.....
In my county the other night, two armed robbers were released on a citation rather than being held in jail. Property and exonomic crime defendants cannot be placed in custody....no room. Even when law enforcement catches the burglar who broke into your home and stole all your stuff, he will be booked and immediately released to return to stealing. Those who fleese the elderly of their life savings, welfare cheats, bad check writers, identity thieves will walk free the same day they are arrested.
And......so far here in the north sate, there have been two murders committed by people who, but for the overcrowding of the prisons and the jails, would have been in custody....That is just in the last two months.
When the smoke clears on the impact of AB109, I believe the body count will be high and it will be recorded as the single most important factor which contributed to the increase of violent crime coming to a neighborhood near you soon. As for me, well...if and when they come to my home, they had better pack a lunch.
In short, what the new law does is shift so called non violent state prison inmates to county jails. County jails, in turn, have received some funding from the state to handle the costs. People I talk to that are in the business of babysitting felons say the money is not enough. What a surprise.
An unintended impact of this shift of prisoners is starting to emerge. Prison inmates prefer state prison to county jails. There is more room, better TV, more recreation, more educational opportunities, more vocational programs, better medical care, more gangs, and more drugs. State prisoners are not happy. They are forming groups, new gangs, and conspiracies and are far, far more dangerous than the average county jail population. It appears clear that assaults on county correctional officers is going to increase, and I predict this to be a dramatic increase. County jails are turning into small versions of state prisons without the tools or money to handle it.
Another impact is surfacing. County jails are intended to house minor offenders and major offenders awaiting trial. These inmates attitudes toward jail staff are significantly more cooperative when they are yet to be convicted. That is what is changing. Additionally, because the jails are now over crowded due to an influx of state prison inmates, local offenders are left outside. That is, local newly arrested criminals cannot be housed in jail. In one north state county, parole violators cannot be put in jail..... no room. In one case, the parole violater then assaulted the parole agent in the jail lobby and the jail STILL would to accept him as a prisoner.....
In my county the other night, two armed robbers were released on a citation rather than being held in jail. Property and exonomic crime defendants cannot be placed in custody....no room. Even when law enforcement catches the burglar who broke into your home and stole all your stuff, he will be booked and immediately released to return to stealing. Those who fleese the elderly of their life savings, welfare cheats, bad check writers, identity thieves will walk free the same day they are arrested.
And......so far here in the north sate, there have been two murders committed by people who, but for the overcrowding of the prisons and the jails, would have been in custody....That is just in the last two months.
When the smoke clears on the impact of AB109, I believe the body count will be high and it will be recorded as the single most important factor which contributed to the increase of violent crime coming to a neighborhood near you soon. As for me, well...if and when they come to my home, they had better pack a lunch.
Tuesday, November 1, 2011
Officer Involved Shootings
OK, it is a ways away from criminal procedure. But it does almost always involve self defense so maybe this post isn't too far off subject.
I am a bit surprised here in 2011 that there are so many different procedures in the various counties, cities and states to investigate officer involved shootings. It seems to me that where politics, egos, and turfdom are put aside, the best way to investigate these incidents is clear. I was thinking about this area recently when I read the story about the double murderer in the Ft. Bragg area that had hid from the cops for a month in the woods and was ultimately shot and killed by a Sacramento County SWAT team. It appeared that officer(s) involved shooting was not much in the way of "self defense" . In that case, it was the use of deadly force to apprehend a fleeing felon. I will get back to this thought later.....keep it in mind.
From the mid 1990's until I retired in 2009, I was involved with, or commanded the investigation of over twenty officer involved shootings. Here in this area of California, the law enforcement agencies entered into an agreement in 1996 to form an "Officer Involved Shooting and Critical Incident Team" Very experienced investigators from each agency were members of the OIS Team. If an officer involved shooting occured, all of the police agencies would send their top investigator(s) and they would conduct the investigation. This way, the agency whose officer was involved did not conduct the investigation. The entire process was overseen by the elected district attorney who ultimately would determine if any law was broken, cop or bad guy. Because there would be twenty or more investigators assembled to do the investigation, it was usually the case that a finding could be made as to the legaliity of the officers shooting within 24 hours. This allowed the involved officers to know where they stood and were not off on administrative leave for days, weeks, or months waiting for the D.A. to decide. It works very well
I am continually suprised to read in the newspaper that some DA somewhere finally decided that the officers involved in a shooting MONTHS AGO are cleared of any wrong doing...Wow! Really?...It took months to make that decision? What about the poor cops involved waiting for your decision, week after week? You see, the shooting team approach will only work when the police chiefs, the sheriff and the DA put their egos and turf issues aside and agree to do what is right....Multi-agency officer involved shooting teams work and are the best way to investigate this issues.
Now, I told you there was some connection to criminal law. The Ft. Bragg shooting of a murderer was the first police shooting I can think of in decades in this area where the legal justification for the police shooting was really centered on apprehension, not self defense. Once upon a time cops could use deadly force in the apprehension of any felon. In those days, if you ran, you just died tired. Then along came Tennessee v. Garner. The SCOTUS said killing people to arrest them was justified only where the bad guy posed a clear and present danger to the community, etc. This use of deadly force rule then reduced the number of police killings to the point where those that happen now are almost exclusively self defense or defense of others. The investigative issue is then focused on the conduct of the officers that shot and whether their perception of the threat to them or others was objectively reasonable. If it was, then their use of deadly force results in a finding of justifiable homicide
As for the use of force in the Ft. Bragg case, based on what little I know, I have no heartache with what occured. This guy shot at the officers searching for him and as the Mendocino County Sheriff said, "he brought the fight to them".
I am a bit surprised here in 2011 that there are so many different procedures in the various counties, cities and states to investigate officer involved shootings. It seems to me that where politics, egos, and turfdom are put aside, the best way to investigate these incidents is clear. I was thinking about this area recently when I read the story about the double murderer in the Ft. Bragg area that had hid from the cops for a month in the woods and was ultimately shot and killed by a Sacramento County SWAT team. It appeared that officer(s) involved shooting was not much in the way of "self defense" . In that case, it was the use of deadly force to apprehend a fleeing felon. I will get back to this thought later.....keep it in mind.
From the mid 1990's until I retired in 2009, I was involved with, or commanded the investigation of over twenty officer involved shootings. Here in this area of California, the law enforcement agencies entered into an agreement in 1996 to form an "Officer Involved Shooting and Critical Incident Team" Very experienced investigators from each agency were members of the OIS Team. If an officer involved shooting occured, all of the police agencies would send their top investigator(s) and they would conduct the investigation. This way, the agency whose officer was involved did not conduct the investigation. The entire process was overseen by the elected district attorney who ultimately would determine if any law was broken, cop or bad guy. Because there would be twenty or more investigators assembled to do the investigation, it was usually the case that a finding could be made as to the legaliity of the officers shooting within 24 hours. This allowed the involved officers to know where they stood and were not off on administrative leave for days, weeks, or months waiting for the D.A. to decide. It works very well
I am continually suprised to read in the newspaper that some DA somewhere finally decided that the officers involved in a shooting MONTHS AGO are cleared of any wrong doing...Wow! Really?...It took months to make that decision? What about the poor cops involved waiting for your decision, week after week? You see, the shooting team approach will only work when the police chiefs, the sheriff and the DA put their egos and turf issues aside and agree to do what is right....Multi-agency officer involved shooting teams work and are the best way to investigate this issues.
Now, I told you there was some connection to criminal law. The Ft. Bragg shooting of a murderer was the first police shooting I can think of in decades in this area where the legal justification for the police shooting was really centered on apprehension, not self defense. Once upon a time cops could use deadly force in the apprehension of any felon. In those days, if you ran, you just died tired. Then along came Tennessee v. Garner. The SCOTUS said killing people to arrest them was justified only where the bad guy posed a clear and present danger to the community, etc. This use of deadly force rule then reduced the number of police killings to the point where those that happen now are almost exclusively self defense or defense of others. The investigative issue is then focused on the conduct of the officers that shot and whether their perception of the threat to them or others was objectively reasonable. If it was, then their use of deadly force results in a finding of justifiable homicide
As for the use of force in the Ft. Bragg case, based on what little I know, I have no heartache with what occured. This guy shot at the officers searching for him and as the Mendocino County Sheriff said, "he brought the fight to them".
Thursday, October 6, 2011
Searches of Cell Phones W/O Warrant Upheld
WOW, I did not notice it had been so long since I added to this blog. I guess with only six followers it isn't a monumental issue. It is kinda like talking to yourself......Anyway.
People v Nottoli, CA 6th Court of Appeals, September, 2011. OK OK, I know it is only a California court of appeals decision and has no affect anywhere else in the world, it may just be upheld by the California Supreme Court.
Nottoli and his girlfriend were driving along at 90 MPH on a 45 MPH zone early one morning and were stopped by a local sheriff deputy. You know the drill...speech rapid, eyes blown out, sweating on a cold night. Enough where the deputy thought he was driving under the influence of a controlled substance. The deputy ultimately arrests Nottoli for that, cuffs him, and places him in the cage of his car.
OK, there are a couple of things going on here with the 4th Amendment. First, a case decades ago said that cops can search the interior of cars and all contents therein "incident to an arrest" That was black letter law for a really long time....that is until the Gant case came along a couple of years ago. There, the Supremes said not so fast. It,(to them) does not make sense to allow a search incident to arrest of a car if the bad guy is already restrained. The idea behind Belton was to protect cops from weapons the bad guy might go for in the car so a search was "reasonable" without a warrant. SO, if the arrestee is secured in the cop car, then the search of the interior of the car incident to the arrest is not allowed. Gant, however, also said the ruling did not affect the Ross holding and if probable cause to believe there is evidence of crime in the car, then the cops can search without a warrant.
In Nottoli, the deputy searched the car after arresting and securing Nottoli, counter to the holding in Gant, some would say. But, wait, there's more!!!. Shifting back a couple of decades, a case called Ross came along and Ross said: If a cop has probable cause to believe a vehicle contains evidence of crime, then no search warrant is required and the entire vehicle can be searched for evidence. Gant also said that. So, OK, it looks like the deputy in Nottoli is off the hook, right? Yes he was, so said the CA Court of Appeals. Here Nottoli was found to be under the influence of a controlled substance and arrested and it was deemed reasonable to conclude there may be evidence of crime (dope) in the vehicle. So far so good. The deputy saw a cell phone later determined to be Nottoli's in the cup holder. The deputy checked it to see if it worked and then went through the text messages and found photos of Nottoli with illegal weapons (he was a convicted felon) and evidence of drug dealing. The trial court suppressed this evidence because the cell phone search was without a warrant. Well, searches of vehicles based not on an arrest but on probable cause allow searches of all of the vehicle and all "containers" in the vehicle. In basic terms, the court in Nottoli held that the data in the cell phone can be accessed and searched since the cell phone was a "container" within the automobile.
So, here is how it works. Cop stops car for speeding. Driver is under the influence of dope. Driver is arrested. Any cell phone found on driver or in his vehicle can now be searched and the data downloaded as it pertains to the crime of driving under the influence of dope. If any other crimes are discovered (like kiddie porn photos in the phone for example), then the defendant can be charged with those crimes as well.
I agree with the constitutional rationale and the outcome of this case, but I bet the defense attorneys are going to go nuts over this one. It is a broad new tool for law enforcement. We will see if the California Supreme Court will uphold it and if the U.S. Supreme Court will affirm as well. Oh, by the by......What if Nottoli's lap top computer was in the car?.....is it a "container"......Interesting, don't you think?
People v Nottoli, CA 6th Court of Appeals, September, 2011. OK OK, I know it is only a California court of appeals decision and has no affect anywhere else in the world, it may just be upheld by the California Supreme Court.
Nottoli and his girlfriend were driving along at 90 MPH on a 45 MPH zone early one morning and were stopped by a local sheriff deputy. You know the drill...speech rapid, eyes blown out, sweating on a cold night. Enough where the deputy thought he was driving under the influence of a controlled substance. The deputy ultimately arrests Nottoli for that, cuffs him, and places him in the cage of his car.
OK, there are a couple of things going on here with the 4th Amendment. First, a case decades ago said that cops can search the interior of cars and all contents therein "incident to an arrest" That was black letter law for a really long time....that is until the Gant case came along a couple of years ago. There, the Supremes said not so fast. It,(to them) does not make sense to allow a search incident to arrest of a car if the bad guy is already restrained. The idea behind Belton was to protect cops from weapons the bad guy might go for in the car so a search was "reasonable" without a warrant. SO, if the arrestee is secured in the cop car, then the search of the interior of the car incident to the arrest is not allowed. Gant, however, also said the ruling did not affect the Ross holding and if probable cause to believe there is evidence of crime in the car, then the cops can search without a warrant.
In Nottoli, the deputy searched the car after arresting and securing Nottoli, counter to the holding in Gant, some would say. But, wait, there's more!!!. Shifting back a couple of decades, a case called Ross came along and Ross said: If a cop has probable cause to believe a vehicle contains evidence of crime, then no search warrant is required and the entire vehicle can be searched for evidence. Gant also said that. So, OK, it looks like the deputy in Nottoli is off the hook, right? Yes he was, so said the CA Court of Appeals. Here Nottoli was found to be under the influence of a controlled substance and arrested and it was deemed reasonable to conclude there may be evidence of crime (dope) in the vehicle. So far so good. The deputy saw a cell phone later determined to be Nottoli's in the cup holder. The deputy checked it to see if it worked and then went through the text messages and found photos of Nottoli with illegal weapons (he was a convicted felon) and evidence of drug dealing. The trial court suppressed this evidence because the cell phone search was without a warrant. Well, searches of vehicles based not on an arrest but on probable cause allow searches of all of the vehicle and all "containers" in the vehicle. In basic terms, the court in Nottoli held that the data in the cell phone can be accessed and searched since the cell phone was a "container" within the automobile.
So, here is how it works. Cop stops car for speeding. Driver is under the influence of dope. Driver is arrested. Any cell phone found on driver or in his vehicle can now be searched and the data downloaded as it pertains to the crime of driving under the influence of dope. If any other crimes are discovered (like kiddie porn photos in the phone for example), then the defendant can be charged with those crimes as well.
I agree with the constitutional rationale and the outcome of this case, but I bet the defense attorneys are going to go nuts over this one. It is a broad new tool for law enforcement. We will see if the California Supreme Court will uphold it and if the U.S. Supreme Court will affirm as well. Oh, by the by......What if Nottoli's lap top computer was in the car?.....is it a "container"......Interesting, don't you think?
Monday, January 10, 2011
He Has Got To Be Crazy
This weekends shooting of nineteen people including a congresswoman and a federal judge in Arizona is a tragic and deplorable act and should be condemned by all civilized people. Assignation of our government officials is not the way we do business in this country. Already, there are calls for new and more restrictive gun controls, specifically a federal ban on large capacity magazines, as has existed in California for many years. More on that later.
The act of this "whacko" is likely to be characterized as proof alone that the shooter is "crazy". Most people tend to look at the result of an act as sufficient evidence of legal insanity. To do so is natural but legally flawed.
First, being mentally ill and "crazy" is not the same as being legally insane. In fact, some very, very nutty people have done some very nutty things and are very legally sane. One can point to some infamous killers in our time, like Charles Manson, who were found legally sane and responsible legally for their acts. Some can point to some mental defenses such as diminished capacity as a "loop hole" allowing people to not be held accountable for their crimes. You may recall the murders of Mayor Mosconi and Councilman Harvey Milk who were shot and killed by a person who claimed he was "high" on sugar from Twinkies, and his capacity to understand was diminished. and, indeed, the jury bought it and he got manslaughter instead of murder. This led to a so-called banning of the diminished capacity defense in California. I say "co-called" because , in effect, it did not ban the defense, but changed it into something else
As a general rule, and the law in the majority of states, a person is not legally insane if: They understand the nature and quality of their act or they didn't, they knew it was wrong, they are sane. A person can be crazier than a bed bug but if they know what they are doing is killing a human being and that to do so is wrong, they are legally sane.
So, Mr. Arizona Whacko can rant all he wants about not wanting to use the countries money because it is not on the gold standard, or his "dreams" or what every the hell he wants to rant and rave about. If he knew that shooting people was held as wrong by society and he knew that he was, in fact, shooting people, he is legally sane. How do you prove that? Well, he tried to get away, for one thing. People who believe they are not doing something wrong, have no reason to run.
The fact is that mental defenses do not work often and jurys don't like them. They don't care if his mommy was mean to him or he was picked on at school. Mr. Whacko can have all the shrinks he wants to testify about his little brain and how it doesn't work. It will not work, in my humble opinion.
So, when someone comments this guy was "nuts" or "crazy" because of all the news stories about his Facebook statements or whatever he as written in his dream journal, just shake your head and tell them that just because he is nuts, it doesn't mean he is legally insane. I wish Arizona or the Feds had an electric chair with really, really high voltage. No one is more deserving than this guy.
The act of this "whacko" is likely to be characterized as proof alone that the shooter is "crazy". Most people tend to look at the result of an act as sufficient evidence of legal insanity. To do so is natural but legally flawed.
First, being mentally ill and "crazy" is not the same as being legally insane. In fact, some very, very nutty people have done some very nutty things and are very legally sane. One can point to some infamous killers in our time, like Charles Manson, who were found legally sane and responsible legally for their acts. Some can point to some mental defenses such as diminished capacity as a "loop hole" allowing people to not be held accountable for their crimes. You may recall the murders of Mayor Mosconi and Councilman Harvey Milk who were shot and killed by a person who claimed he was "high" on sugar from Twinkies, and his capacity to understand was diminished. and, indeed, the jury bought it and he got manslaughter instead of murder. This led to a so-called banning of the diminished capacity defense in California. I say "co-called" because , in effect, it did not ban the defense, but changed it into something else
As a general rule, and the law in the majority of states, a person is not legally insane if: They understand the nature and quality of their act or they didn't, they knew it was wrong, they are sane. A person can be crazier than a bed bug but if they know what they are doing is killing a human being and that to do so is wrong, they are legally sane.
So, Mr. Arizona Whacko can rant all he wants about not wanting to use the countries money because it is not on the gold standard, or his "dreams" or what every the hell he wants to rant and rave about. If he knew that shooting people was held as wrong by society and he knew that he was, in fact, shooting people, he is legally sane. How do you prove that? Well, he tried to get away, for one thing. People who believe they are not doing something wrong, have no reason to run.
The fact is that mental defenses do not work often and jurys don't like them. They don't care if his mommy was mean to him or he was picked on at school. Mr. Whacko can have all the shrinks he wants to testify about his little brain and how it doesn't work. It will not work, in my humble opinion.
So, when someone comments this guy was "nuts" or "crazy" because of all the news stories about his Facebook statements or whatever he as written in his dream journal, just shake your head and tell them that just because he is nuts, it doesn't mean he is legally insane. I wish Arizona or the Feds had an electric chair with really, really high voltage. No one is more deserving than this guy.
Friday, December 10, 2010
Reporters and the Law
A story recently appeared in a local paper where the reporter discussed a business that was the victim of a drive by shooting. The business was closed, no one around and no one inside or hurt in any way. The reporter said there was no evidence the business was "robbed". I know it is a small thing, but the misuse of legal terms by seasoned reporters drives me crazy. So, since I know the reporter from many contacts when I was working, I sent him an e-mail. It was polite and friendly, wishing him the best, etc. He replied that he got the term "robbed" from the sheriffs deputy that made the reference.
Wow, now I am really alarmed. It was bad enough that a reporter did not know the difference between a "burglary" and a "robbery", but the sheriffs deputy who took the call?
OK, I know none of you will ever make that mistake, but just in case, here is the difference. A Burglary is the breaking and entering of a building with the intent to commit a felony or any theft. No one needs to be there to be a victim of burglary. A Robbery is the taking and carrying away the personal property of another by force or intimidation.
Someone has to be forced or intimidated into handing over their stuff to be robbed. A building cannot ever be robbed. People are robbed, buildings are burglarized....It is just that friggin' simple. And, for a reporter who has the assignment of covering crime, and doing the job for decades to not have picked up the difference along the way is , well, astonishing. But for a deputy sheriff to be so careless in the terms, is unforegivable.....There, I do feel better now
Wow, now I am really alarmed. It was bad enough that a reporter did not know the difference between a "burglary" and a "robbery", but the sheriffs deputy who took the call?
OK, I know none of you will ever make that mistake, but just in case, here is the difference. A Burglary is the breaking and entering of a building with the intent to commit a felony or any theft. No one needs to be there to be a victim of burglary. A Robbery is the taking and carrying away the personal property of another by force or intimidation.
Someone has to be forced or intimidated into handing over their stuff to be robbed. A building cannot ever be robbed. People are robbed, buildings are burglarized....It is just that friggin' simple. And, for a reporter who has the assignment of covering crime, and doing the job for decades to not have picked up the difference along the way is , well, astonishing. But for a deputy sheriff to be so careless in the terms, is unforegivable.....There, I do feel better now
Friday, November 26, 2010
Flying Naked
OK, well at least it got your attention. Are we headed for a world where flying without clothes is going to be the norm? Is security worth the restrictions? Does the fourth amendment to the Constitution have any affect on the Washington idiots? Most directly, do we all have to give up privacy as an exchange for so-called increased air security?
The Fourth Amendment to the Constitution says, inter alia, that "the people shall be secure in the persons, houses, papers and effects, and no warrant shall issue without probable cause". The latter part of the sentence is what is called the "warrant clause" Many constitutional scholars believe it stands, in application, as a "warrant requirement". Indeed, the SCOTUS has said over and over that "searches without a search warrant are presumptively unconstitutional" And, almost in the same breath, have carved out exception after exception to searches of persons being reasonable without a search warrant.
One of the exceptions the SCOTUS has established are so called administrative searches, such as what it going on in our airports. They have reasoned that a person has the option not to enter if they object to a search and that they (the passenger) have, by implication, consented to the search when they chose to fly on a commercial airplane. Forgive the directness, but WHAT BULLSHIT!
OK, right, yes the court has held limited searches to enter places reasonable but the denial of privacy was balanced against the need of government and in this balance, the court fell on the side of the government. But, come on!.... I do not believe the level of intrusiveness of the searches being conducted in our airports is reasonable in that balance and that it will, or damn well should, be found to be unreasonable and therefore unconstitutional. You see, government can violate your rights if they have a "compelling governmental interest" This is called a strict scrutiny. While a case can be made that terrorists being prevented from blowing up airplanes or using them as weapons is a compelling government reason to violate our fourth amendment rights, the government must be able to prove that the procedures they are using will likely achieve the need. I don't think they can do that. The government (TSA) admit the new porn scanners cannot detect bombs like the underwear bomber was using, or an explosive device hidden in a body cavity, so how are they going to show their procedures meet the governments need?
The fact is, they are targeting the wrong goal. The government needs to concentrate on detecting BOMBERS not bombs. What they are currently doing is, to quote the former security chief for El Al Airlines, idiotic. The government should stop searching grandmothers, infants and housewives from Philly and concentrate on the traits of those who have attacked this country in the past. That is not, repeat, not racial profiling...it is just common sense. If a segment of our society gets offended because they get to have a chat with a government official every time they fly, so what.....don't fly.....That is exactly what they are telling the rest of the country to do if they object to the current porn scanners or grope search, isn't it? We have got to stop being political correct long enough to save the country, don't you think?
Back to the law...... I hope a case gets to the SCOTUS on direct appeal soon enough for some of us to actually be willing to fly again. As for me, it would have to be a really "compelling need" for me to go through this crap to get on a plane..... Don't be so willing to give up a constitutional right so easily...Before long, you may not have any.
The Fourth Amendment to the Constitution says, inter alia, that "the people shall be secure in the persons, houses, papers and effects, and no warrant shall issue without probable cause". The latter part of the sentence is what is called the "warrant clause" Many constitutional scholars believe it stands, in application, as a "warrant requirement". Indeed, the SCOTUS has said over and over that "searches without a search warrant are presumptively unconstitutional" And, almost in the same breath, have carved out exception after exception to searches of persons being reasonable without a search warrant.
One of the exceptions the SCOTUS has established are so called administrative searches, such as what it going on in our airports. They have reasoned that a person has the option not to enter if they object to a search and that they (the passenger) have, by implication, consented to the search when they chose to fly on a commercial airplane. Forgive the directness, but WHAT BULLSHIT!
OK, right, yes the court has held limited searches to enter places reasonable but the denial of privacy was balanced against the need of government and in this balance, the court fell on the side of the government. But, come on!.... I do not believe the level of intrusiveness of the searches being conducted in our airports is reasonable in that balance and that it will, or damn well should, be found to be unreasonable and therefore unconstitutional. You see, government can violate your rights if they have a "compelling governmental interest" This is called a strict scrutiny. While a case can be made that terrorists being prevented from blowing up airplanes or using them as weapons is a compelling government reason to violate our fourth amendment rights, the government must be able to prove that the procedures they are using will likely achieve the need. I don't think they can do that. The government (TSA) admit the new porn scanners cannot detect bombs like the underwear bomber was using, or an explosive device hidden in a body cavity, so how are they going to show their procedures meet the governments need?
The fact is, they are targeting the wrong goal. The government needs to concentrate on detecting BOMBERS not bombs. What they are currently doing is, to quote the former security chief for El Al Airlines, idiotic. The government should stop searching grandmothers, infants and housewives from Philly and concentrate on the traits of those who have attacked this country in the past. That is not, repeat, not racial profiling...it is just common sense. If a segment of our society gets offended because they get to have a chat with a government official every time they fly, so what.....don't fly.....That is exactly what they are telling the rest of the country to do if they object to the current porn scanners or grope search, isn't it? We have got to stop being political correct long enough to save the country, don't you think?
Back to the law...... I hope a case gets to the SCOTUS on direct appeal soon enough for some of us to actually be willing to fly again. As for me, it would have to be a really "compelling need" for me to go through this crap to get on a plane..... Don't be so willing to give up a constitutional right so easily...Before long, you may not have any.
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