You Have The Right To Freeze And Be Utterly Silent

by Gary Farber

The Fourth Amendment continues to be onion-peeled into nothingness.  KENTUCKY v. KING puts another nail in the coffin as police gain the right to kick in your door simply because they hear movement within your dwelling.

Obviously that's probable cause, because noise indicates a crime. 

Does that make sense to you?  It does to 8 out of 9 members of the Supreme Court.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, SOTOMAYOR,  and KAGAN,  JJ., joined. GINSBURG, J., filed a dissenting opinion.

Here's the gist: 

[...] 

Justice Samuel A. Alito Jr., writing for the majority, said police officers do not violate the Fourth Amendment’s ban on unreasonable searches by kicking down a door after the occupants of an apartment react to hearing that officers are there by seeming to destroy evidence.

In dissent, Justice Ruth Bader Ginsburg wrote that the majority had handed the police an important new tool.

“The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases,” Justice Ginsburg wrote. “In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.”

The case, Kentucky v. King, No. 09-1272, arose from a mistake. After seeing a drug deal in a parking lot, police officers in Lexington, Ky., rushed into an apartment complex looking for a suspect who had sold cocaine to an informant.

But the smell of burning marijuana led them to the wrong apartment. After knocking and announcing themselves, they heard sounds from inside the apartment that they said made them fear that evidence was being destroyed. They kicked the door in and found marijuana and cocaine but not the original suspect, who was in a different apartment.

The Kentucky Supreme Court suppressed the evidence, saying that any risk of drugs being destroyed was the result of the decision by the police to knock and announce themselves rather than obtain a warrant.

The United States Supreme Court reversed that decision on Monday, saying the police had acted lawfully and that was all that mattered. The defendant, Hollis D. King, had choices other than destroying evidence, Justice Alito wrote.

He could have chosen not to respond to the knocking in any fashion, Justice Alito wrote. Or he could have come to the door and declined to let the officers enter without a warrant.

“Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame,” Justice Alito wrote. 

Right.  Let's get more detail.

[...] In response to the radio alert, the uniformed officers drove into the nearby parking lot, left their vehicles, and ran to the breezeway.  Just as they entered the breezeway, they heard a door shut and detected a very strong odor of burnt marijuana.  At the end of the breezeway, the officers saw two apartments, one on the left and one on the right, and they  did not  know which apartment the  suspect had entered.  Gibbons had radioed that the suspect was run­ning into the apartment on the right, but the officers did not hear this statement because they had already left their vehicles.  Because they smelled marijuana smoke emanating from the apartment on the left, they ap­proached the door of that apartment. Officer Steven Cobb, one of the uniformed officers who approached the door, testified that the officers banged on the left apartment door “as loud  as [they]  could” and an­nounced, “ ‘This is the police’ ” or “ ‘Police, police, police.’ ”  Id., at 22–23.  Cobb said that “[a]s soon as [the officers]started banging on the door,” they “could hear people inside moving,” and “[i]t sounded as [though] things were being moved inside the apartment.”  Id.,  at  24. These noises, Cobb testified, led the officers to believe that drug ­related evidence was about to be destroyed.

At that  point, the officers announced that they “were going to make entry inside the apartment.”  Ibid. Cobb then kicked in the door, the officers entered the apart­ment, and they found three people in the front room: respondent Hollis King, respondent’s girlfriend, and a guest who was smoking marijuana. The officers per­formed a protective sweep of the apartment during which they saw marijuana and powder cocaine in plain view.  In a subsequent search, they also discovered crack cocaine, cash, and drug paraphernalia. Police eventually entered the apartment on the right. Inside, they found the suspected drug dealer who was the initial target of their investigation. 

So, to recapitulate: the cops simply followed a suspect, lost track of him, had a 50-50 chance of guessing whether he was in the left or right apartment, smelled burning marijuana, yelled "police," then because they ZOMG, heard noise, that was sufficient reason to bust down the door of someone with no connection to the suspect, arrest them, and subsequently convict them, and that's sufficient cause for a search.

So: all the police have to do is be near enough your dwelling to think they hear inside it, decide they hear movement, and voila: goodbye, requirement for a warrant. 

The court sentenced respondent to 11 years’ imprisonment.

So if anyone knocks loudly at your door, and you can't make out what they say: you damn well better freeze.  It might be the police, and if you move, that might be grounds for your door being broken down and your home searched.  

But, hey, if you're not a criminal, what do you have to hide?  Isn't that what constitutional rights are all about?

No?

So what's the right approach?  How about the one the Kentucky Supreme Court gave, which SCOTUS reversed?  

[...] To determine whether police  impermissibly  created the exigency, the Supreme Court of Kentucky  announced a two-part test.  First, the court held, police cannot “deliber­ately creat[e] the exigent circumstances with the bad faith intent to avoid the warrant requirement.” [...] Second, even absent bad faith,  the court concluded, police may  not rely on exigent circumstances if “it was reasonably foreseeable that the investigative tactics employed by the police would create the  exigent circumstances.”  [...]  Although the court found no  evi­dence of bad faith, it held that exigent circumstances could not justify the search because it  was reasonably foresee­able that the occupants would destroy evidence when the police knocked on the door and announced their presence. 

Crazy, eh?  But, no, Samuel Alito says it's all your fault if you move.

What's wrong here?  It's not complicated: 

JUSTICE GINSBURG, dissenting. The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.  In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant.

[...] Circumstances qualify as “exigent” when there is animminent risk of death or serious injury, or danger  that evidence will be immediately destroyed, or that a suspect will escape.  

[...]

The question presented: May police, who couldpause to gain the approval of a neutral magistrate, dispense with the need to get a warrant by themselves creating exigent circumstances?  I would answer no, as did the Kentucky Supreme Court.   The urgency  must exist, I would rule, when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.

[...] “[T]he police bear a heavy  burden,” the Court has cautioned, “when attempting to demonstrate anurgent need that might justify warrantless searches.” [...] That heavy burden has not been carried here.   There was little risk that drug-related evidence would have been destroyed had the police delayed the search pendinga magistrate’s authorization.   As the Court recognizes, in no quarter does the Fourth  Amendment apply with greater force than in our homes,  our most private space which, for centuries,  has been regarded as “ ‘entitled to special protection.’ ”   [...]  Home intrusions, the Court has said, are indeed “the chief evil against which . . .the Fourth Amendment is directed.”  [...] (“At [the Fourth Amendment’s] very core stands the right of a man to retreat to his own home and there be free from unreasonable governmental intrusion.”).  “ ‘[S]earches and seizures inside a home without a warrant are [therefore] presumptively unreasonable.’ ”   [...] 

How “secure” do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence  of unlawful activity?  

The answer is simple: not at all.

Welcome to the land of the free and the home of the brave.

An entirely separately notable act by SCOTUS today was this: 

[...] Among the cases denied review on Monday, perhaps the highest visibility one was Mohamed, et al., v. Jeppesen Dataplan, Inc., et al. (10-778) — the latest appeal seeking to challenge the closing down of a lawsuit, because the government claims a “state secrets” privilege, seeking to hold someone liable for the Central Intelligence Agency’s once-secret program of “extraordinary rendition.”  That phrase is the technical description of an official practice, used fairly often during the “war on terrorism,” in which an individual is captured in a foreign country, and transferred secretly to another country, for interrogation and, allegedly in some cases, for torture.

In this case, the four foreign nationals targeted by the “rendition” program did not sue the CIA directly, but rather sued a private firm, an affiliate of the Boeing Corp. that was claimed to have provided flight plans and logistics support for CIA-operated planes used to transport the captured individuals to foreign sites.   The four individuals argued that the government had improperly claimed a “state secrets” privilege to shut down the lawsuit entirely, instead of using that privilege only to challenge evidence, piece by piece, as involving national security interests.   The Ninth Circuit, however, ruled that the privilege may indeed be invoked to end a lawsuit entirely, on the theory that it simply cannot be tried in any way without risking exposure of national secrets.

The Supreme Court has refused repeatedly in recent years to hear appeals challenging the use of the “state secrets” doctrine in cases testing secret intelligence or military operations.  It thus appears that some of the most controversial anti-war programs initiated during the George W. Bush Administration may never be tested in federal court.

The entire legal "state secrets" doctrine remains appalling. Just take the executive's word! Who doesn't love a doctrine (U.S. vs. Reynolds) based on a lie?

Cross-posted at Amygdala.

Comments

[Gary Farber]

Orin Kerr had salient remarks here, including:

[...] First, Kentucky is being unserious when it suggests that the facts of the case were merely a “knock and talk.” When the police conduct a knock and talk, they first knock, and they then wait to see if someone opens the door. If someone opens the door, the police talk to that person to try to develop more facts that can later support a warrant. The fiction is of a friendly chat: The police are essentially dropping by to say hello, and people are free to open the door or not as they wish. Even assuming there was no demand for entry in this case, this case does not involve a knock and talk. The officers just banged on the door and yelled that they were the police. And if there was such a demand, it is obviously very different from a knock and talk.

Second, I don’t see how the test can be that any lawful conduct is permitted. First, the question of what counts as “lawful” is quite murky. Does the lawful test mean lawful under Fourth Amendment law? Constitutional law as a whole? Federal statutory law? State law? International law? The law of war? What counts?

These are not fanciful questions. For example, imagine the police want to release tear gas in an effort to “smoke out” the suspect. Can they release the tear gas, then, when they hear sounds inside, break in without a warrant on the grounds of exigent circumstances? Releasing tear gas is not a search or a seizure. It doesn’t violate the Fourth Amendment. And as far as I know, the police are allowed to release tear gas under other laws, as well: They certainly do it on occasion. But who knows, maybe there is some law somewhere that regulates police use of tear gas. Does that matter? For these reasons, the question of “lawfulness” strikes me as very murky.

More broadly, a rule that the police can do whatever they want that is “lawful” without creating exigent circumstances seems totally unmoored from the purpose of the exigent circumstances exception. The point of having a doctrine on police-created exigencies is to recognize that police-created exigencies are not true exigencies. If the police opt to do the thing that creates the emergency, then there was no genuine emergency. It’s kind of like entrapment doctrine. The police can’t badger a suspect into committing a crime and then arrest him for it, as it was police action, not the suspect’s own decisions, that caused the crime to occur. For that reason, whether the police conduct was “lawful” doesn’t seem relevant to whether it creates exigent circumstances.

No, it doesn't.

[Pinko Punko]

Disappointed in Sotomayor, and wish I could have expected more form Kagan.

Ugh.

[DaveC]

It may soon be a criminal offense to use the wrong kind of sheets in California. per Tigerhawk.

[Spiny Adagio]

More and more, it seems that the people who propose and push through laws are insane. I don't see why it matters whether a hotel uses fitted or flat sheets and where they use them, and I don't see that circumstances caused by police should make anything lawful.

I'm sure that at the beginning there was a kernel of sense, but the effects of these laws form a sort of Catch 22. If police knock at your door and you sneeze, police can come in and toss your place. If you have no illegal substances no harm no foul, except perhaps that you have to replace your door and whatever furniture police trashed.

Seems like the anti-drug paranoia has reached a fever pitch of frenzy. Already we have people going around dazed because they cannot get enough of their OTC antihistamines to make a difference. Ah, says the legislature, just go to a doctor and get a prescription. But minimum wage workers can't go to doctors because they can't afford them because the insurance industry has run up the prices. Oh, and they can't afford health insurance either.

The rich really are different. They have no idea what constitutes real life for minimum wage workers, and more and more of us are minimum wage workers if we have jobs at all.

[RepubAnon]

So home invasion burglars can now safely kick in people's doors by first yelling "Open up! Police!"

Because if it really IS the police, you'd better hold very, very still - especially in Pima County (hat tip Lawyers, Guns and Money):

SWAT">http://azstarnet.com/news/local/crime/article_b3177522-baa0-5c9e-9f0d-d3d7da6e9e4b.html">SWAT raid fatal drama is revealed in 911 call

Jose Guerena, 26, a former Marine, was sleeping after the graveyard shift at Asarco Mission mine about 9:30 a.m. when his wife woke him saying she heard noises outside and a man was at their window. Guerena told his wife to hide in a closet with their 4-year-old son, his wife has said. He grabbed an AR-15 rifle and moments later was slumped in the kitchen, mortally wounded from a hail of gunfire.
...
The Pima County Sheriff's Department has provided no details about the investigation that prompted the raid and little information about the moments leading up to 71 gunshots being fired at Guerena, whose gun had the safety on. He was shot 60 times, doctors told the family. Initially the Sheriff's Department said Guerena fired at officers, but they retracted that this week. Drexel Heights provided audio of the 911 calls after the Star filed a public records request.

[Phil]

In further Fourth Amendment hijinks, in a case that's almost certainly going to end up at the Supreme Court, the Indiana Supreme Court ruled last week that citizens have no right to resist police entering their homes, even if the police are entering illegally:

http://www.chicagotribune.com/news/chibrknews-ind-court-no-right-to-resist-unlawful-police-entry-20110513,0,5874746.story?track=rss

[Slartibartfast]

I'd be shocked if Radley Balko isn't all over this.

On checking, I discover that he has been abroad and has just returned, and that his guest-bloggers covered it.

[Ugh]

Initially the Sheriff's Department said Guerena fired at officers, but they retracted that this week.

The amount of lying, CYAing, covering up, etc. that goes on in just about every single case of police officer misconduct really is astonishing. With no or little punishment, it also seems.

[Ugh]

Also, what does officers acting in bad faith have to do with the Fourth Amendment? Violating constitutional rights is okay if done in "good faith"?

[hairshirthedonist]

Violating constitutional rights is okay if done in "good faith"?

Ahh, I see where you've gone wrong, Ugh. There is no constitutional right in question because of the failure to stand on it. You see, if you don't do the things prescribed by Justice (sic) Alito, you no longer have the right, thus there's nothing for the police to violate.

[Ugh]

How is it that these allegedly smart people can be so effing stupid? I mean, you would think that with the various Harvard/Yale/Princeton degrees sprinkled between and betwixt them the common sense and sensible result would do better than 1 out of 9.

I guess the fact that it's a War on Drugs case means all bets are off and the defendants should consider themselves lucky not to have been shot on sight for their failure to stand on their Constitutional right to remain breathing.

[Countme-In]

Did I read that Justice Alito (a perfect conflation of the Luntzian and the Orwellian) ruled that we have a right to shout chapter and verse of the Constitution through a hail of gunfire in our domicile as long we aren't simultaneously flushing a copy of the Constitution down the toilet as well.

And further that any OSHA-type rulings are unconstitional (using flat sheets in California instead of fitted is NOT criminal, by the way. It's just a rule that will make it easier for Tea Party white people with bad backs and no Medicare to make their beds and lie in them once we've deported all of the swarthy folks making minimum wage and currently being raped on inferior linens) that stipulate that all hotel/motel rooms across the country must supply a white chalk outline on the floor for all of us to lie down in for the convenience of the unionized, overpaid cops with cushy retirements who want to shoot us 60 times.

And further that our bodies may be covered with flat sheets because the Constitution says nothing about fitted sheets but does contain the letters S,W,A,and T repeatedly throughout the document.

If fitted sheets are good enough for cracker Ku Klux Klanners, why not for motel workers?

If there are guns and killing involved, baby, the Constitution is the only thing in the country that's bulletproof for cops, criminals, folks on the terror watch list.

If only fitted sheets were AK-47s, and pillowcases were bullets.

When do we start sequestering troops in women's vaginas?

[wj]

What startled me was that the approval of the "state secrets" finding in Mohamed, et al., v. Jeppesen Dataplan, Inc., et al was by the Ninth Circuit. (The US Supreme Court did not make the finding, merely declined to review the Ninth Circuit finding.

So we have reached the point where we can expect even the most liberal circuit court to uphold a blanket state secrets claim against even having to respond to individual pieces of evidence. That would seem to mean that it is now impossible for an individual to sue the Federal government (unless it voluntarily allows you to do so). Since, apparently, it can use a claim that "state secrets" make it impossible to try the case at all, to quash the suit without demonstrating that they in fact exist and apply to all of the possible evidence.

[wj]

ugh, where do you find a Constitutional right to remain breathing? It would seem that your right not to be deprived of "life, liberty or property" does not, logically, mean that someone cannot suffocate you. I mean, if they are not a physician, how could they know that this could deprive you of life?

[Slartibartfast]

He grabbed an AR-15 rifle and moments later was slumped in the kitchen, mortally wounded from a hail of gunfire.

Next thing you know, you can be shot in your own home, with no warning, if a majority report decides that you were thinking of grabbing your gun.

After that, it will be for buying a gun.

And after that, it will be for considering buying a gun.

Eventually you will be shot for putting off buying the gun, because it's indicative of planning to own such a thing.

But future shootings will be limited to fewer than 50 bullets, which is a win for the taxpayers.

[hairshirthedonist]

We're all Osama Bin Laden now.

[Ugh]

ugh, where do you find a Constitutional right to remain breathing? It would seem that your right not to be deprived of "life, liberty or property" does not, logically, mean that someone cannot suffocate you. I mean, if they are not a physician, how could they know that this could deprive you of life?

Michele, is that you? ;-)

[Ugh]

We're all Osama Bin Laden now.

I agree, if "now" means on or about September 12, 2001.

[Countme-In]

Breathing entails inhaling, which the Constitution prohibits. It says right there.

Exhaling is O.K. because that's what you do just before you pull the trigger.

Take cops' weapons away from them (including tasers), but let them keep collective bargaining rights.

[cleek]

but remember, guns are the only bulwark against an oppressive government.

[hairshirthedonist]

I’d like to take a few steps back and start from the beginning. We have the police and we have a private dwelling. I see the questions as follows, and would appreciate any help from the lawyers here.

Under what circumstances can the police forcefully enter the dwelling without the expressed consent of the occupants?

Under what circumstances can the police collect evidence within the dwelling to be used in criminal prosecutions of the occupants or others?

So the police can enter if they have a warrant. They can also enter given exigent circumstance, like an emergency of some sort.

Once they’ve entered based on a warrant, I assume they can collect evidence to be used in court. (Does the evidence have to be relevant to the purpose of the warrant, or can they also collect evidence of crimes not related to the warrant, which can then be used in court?)

If they’ve entered based on exigent circumstances, can they collect evidence of crimes, particularly if that evidence in not related to any crimes witnessed or suspected at the time? Obviously, if the police had entered because they had reason to think someone was being assaulted, they could collect evidence related to the suspected (or, by then, witnessed) assault. Can they also collect evidence to be used to prosecute someone for other crimes not related to the assault? If so, are there any limitations?

Beyond all of that, how damned important is it that police go busting into homes for anything not related to immediate danger to the occupants? I mean, I can see some circumstances being important enough, but the possibility that someone might be flushing blow down the toilet isn’t one of them. It just seems like the possibilities for people getting shot, cops included, are more compelling than most of the reasons that cops go busting into people’s homes in the first place, with or without a warrant.

[Slartibartfast]

Imagine how this might have gone down, had smoking marijuana been legal by now.

[hairshirthedonist]

Should that matter, if the scent of marijuana is reason to suspect the presence of a cocaine dealer? That's not to say that yours isn't an interesting question, Slart. It's just something that came to mind when I started think on it.

[hairshirthedonist]

Throw a "to" or an "ing" into that last sentence as you see fit.

[Slartibartfast]

I guess it could be just anything that gets their spider-senses tingling, hsh.

Batman would also definitely bust the door down without a warrant.

[sapient]

The fact that the officers smelled marijuana seems an important consideration. It's long been the law that if contraband is in "plain view," no warrant is necessary to enter a home. United States v. Santana, 427 U. S. 38 (1976) It seems like a similar issue that if the existence of contraband can be detected by another of the five senses.

I don't necessarily agree with the line of cases supporting this one, but this situation doesn't seem like anything new. What is interesting to me is that the so many of the decisions justifying warrantless entries and arrests are drug cases. It makes me wonder what criminal procedure jurisprudence would look like if drugs weren't handled under the framework of criminal law. So, yeah, good question, Slartibartfast.

[hairshirthedonist]

Just the fact that you live in some crappy apartment would probably do, or even your failure to spring for a gated iron fence or wall around your pad.

That can be mitigated by decorating the doors and windows of your crappy apartment with items suggesting that you're a sweet, little grandma who shops at the local Hallmark store and loves puppies, kittens, ducks, flowers and the sun.

[Phil]

It seems like a similar issue that if the existence of contraband can be detected by another of the five senses.

We still aren't even sure if dogs can handle sniffing out drugs without error. I don't think we should really be granting human police officers that much leeway.

[hairshirthedonist]

Not that I support police busting into people's homes based on what they smell, but there's a difference between sniffing out drugs that are hidden and not being burned and those that are being burned in the open air. That difference is particularly pronounced in the case of marijuana, which is smoked, making the scent familiar to many people, besides being very distict. It doesn't smell like other things that are normally burned, be it for smoking or cooking. (How else do you know who to stand next to at an outdoor concert?)

[CCDG]

"The fact that the officers smelled marijuana seems an important consideration."

Not so much in Massachusetts anymore

[sapient]

Good find, CCDG. Illustrates the point that the warrantless search and seizure laws might start looking different if drugs were decriminalized.

hairshirthedonist: "loves puppies, kittens, ducks, flowers and the sun"

Sounds like a DFH to me.

[Phil]

hsh, that's certainly true, but even if police do smell pot, the bare minimum crime they could possibly suspect is in progress is simple possession, which in my jurisdiction is a misdemeanor. You have to be found with between 200g and 1kg to even get up to a felony five in Ohio.

[wj]

ugh, if I was Bachmann, my statement wouldn't have been sarcastic. ;-)

[McKinneyTexas]

The 4th Amendment needs some teeth, at a minimum, a meaningful remedy for searching, and ransacking, the wrong house. Statistically, the chances of being on the wrong end of bad state-sponsored ransack are vanishingly small, but still, it is something I think about considerably more than, e.g. being in a major car wreck.

[Ugh]

The 4th Amendment needs some teeth, at a minimum, a meaningful remedy for searching, and ransacking, the wrong house.

This is a good point. Your remedy if evidence of criminal wrongdoing is found in the course of an illegal search is supposed to be that it can't be used against you in court (this remedy doesn't always apply, for reasons that still remain unclear to me to this day).

If no evidence is found, well, you better hope there is some statutory basis for a civil suit against the State/local government, otherwise you're SOL. "What, we raided the wrong house, shot your dogs for no good reason, and held you at gunpoint in your underwear for fours house? Sucks to be you."

[Slartibartfast]

the chances of being on the wrong end of bad state-sponsored ransack are vanishingly small

I think your "vanishingly small" and mine are different. And of course your chances increase dramatically if you happen to have to live cheek-by-jowl with people involved in criminal activities. In other words, if you're poor, and thus in a rather poor position to hire an attorney to exact some kind of recompense.

Also, you should go over and read Radley Balko, if you don't already, because this kind of thing happens ALL THE TIME. Even if there are only 7-9 lightning deaths in Florida every year (vanishingly small), you don't want to hang out on the beach when the storms are moving in.

[Phil]

Your remedy if evidence of criminal wrongdoing is found in the course of an illegal search is supposed to be that it can't be used against you in court (this remedy doesn't always apply, for reasons that still remain unclear to me to this day).

And even that has been weakened considerably in recent years, most recently in Hudson v. Michigan, where the court held - in, quell surprise, a 5-4 decision - that violation of the knock-and-announce rule was not sufficient to allow exclusion of evidence. I suspect that if it was solely up to Scalia, Roberts, Alito and Thomas there would be no exclusionary rule.

[Phil]

It goes without saying that Hudson was a drug case. The War On Poor People Who Use And Sell Certain Drugs has done irrepairable damage to our rights, IMO.

[Hartmut]

Suing the cops could be difficult too because several states have made it more or less illegal to collect useful evidence like filming or audiotaping the events (even or especially if the cops are clearly violating the law). Sentences for that can be draconian.

[Spiny Adagio]

Seems like if drugs were made legal, like alcohol, cigarettes, and ice cream, we'd put a whole lotta people out of business.

[McKinneyTexas]

Slarti, points taken. For a bad search, I favor a strict liability, "you broke it, you buy it" with minimum add'l damages of some non-nominal amount, say 50K, plus attys fees. If local law enforcement budgets felt the pain of a bad search, I suspect there would be less of them.

Under the current standard, if there's beer can in the front yard and a kid walking out of the house, can the door be kicked in to make sure there isn't any under aged drinking going on?

[Turbulence]

For a bad search, I favor a strict liability, "you broke it, you buy it" with minimum add'l damages of some non-nominal amount, say 50K, plus attys fees.

This would be a huge improvement. However, I think it is politically impossible. For starters, you'll get cops and local government advocating against it and telling people that it will hamper their ability to ensure public safety. And then you'll have politicians demagoguing the issue wildly: "I'm tough on crime but my opponent wants the police to pay $50,000 to drug dealers when their big city lawyers get them off on a technicality; he's more worried about the rights of dangerous criminals than with giving our police officers the tools they need".

Does anyone disagree?

[McKinneyTexas]

Does anyone disagree?

I don't, given the current climate. More exposure is needed, obviously. Probably not going to happen.

[wj]

Fantasy of the day:
Following a bad tip, the DC police kick in the door and trash a house looking for illegal drugs without success. But unfortunately, Justice Alito (or substitute another Justice of your choice) has no remedy, per decisions that he wrote and/or joined. Oh, the horror!

Alternative: they actually find illegal drugs.

[Brett Bellmore]

This, too, is an example of a "living" constitution. Bring that sucker to life, and it won't just shamble in the direction you want...

[bobbyp]

yes, the zombie lurching toward you is originalism clothed in movement conservatism garb and extolling a reductionist version of corporatism that would make even mussolini gag.

[Countme-In]

What year did that sucker die?

Was it the year before it forgot to mention I'm permitted to arm up with AK-47s and sell crack cocaine to your kids?

You mean the dead effer didn't know about AK-47s and crack cocaine? I thought, being dead, it knew everything.

Or was it the year after Thomas Jefferson invented fitted sheets at Monticello and mandated them for the entire Louisiana Territory, despite Davy Crockett's interpretation that squaw scalps could be taken on the single-flat-pane variety?

Show me the language this corpse speaks at the seance.

[Bird Dog]

Gary,
Kerr's more recent comments on the decision are more charitable to the majority opinion. The more obvious 4th Amendment trashing was the Indiana ruling.

[EnBuenora]

I didn't know there was still any 4th Amendment anyway.

I thought that these days it was pretty much just the 2nd and 10th, with the 1st thrown in if you're a big company.

[jrudkis]

If the police knock, don’t flush the toilet.

I received an email re: the Indiana case from a friend who was offended by the Police State that the ruling represented (because Drudge linked the case). My thought was that I can’t imagine that Indiana is the first State to say that you can’t assault an officer, even if the officer is wrong.

Looking at my state, Washington, I found the Mierz case:

1997 Washington State Supreme Court (selected statements that I think encompass the ruling that may no longer be in order):

In sum, we hold that, although a person who is being unlawfully arrested has a right, as the trial court indicated in instruction 17, to use reasonable and proportional force to resist an attempt to inflict injury on him or her during the course of an arrest, that person may not use force against the arresting officers if he or she is faced only with a loss of freedom. We explicitly overrule Rousseau and other cases that are inconsistent with our holding in this case...

We will not adopt a rule, as Mierz advocates, that permits citizens to claim a right of self-defense against law enforcement officials who are performing their duty in good faith and who do not place citizens in an imminent threat of serious bodily injury. Neither will we apply the exclusionary rule to bar admission of evidence of assaultive behavior against identified law enforcement officers who are performing their official duties and allegedly violate the Fourth Amendment. We will not condone violence against law enforcement officials...

It is a wise course, and the hallmark of our civilization, that the rule of law should prevail over needless confrontation...

Officers would be subject to attack if their allegedly unlawful entry onto property or improper arrest forecloses admission of evidence of assaults upon them. In State v. Aydelotte, 35 Wn. App. 125, 132, 665 P.2d 443 (1983), the Court of Appeals held that an assault against police officers following an illegal entry is outside the scope of the
exclusionary rule, because it is sufficiently distinguishable from any initial police illegality "to be purged of the primary taint" (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)). The court agreed that excluding such evidence would allow one whose home has been illegally entered to "respond with unlimited force and, under the exclusionary rule, . . . be effectively immunized from criminal responsibility." Aydelotte, 35 Wn. App. at 132 (quoting State v. Burger, 55 Or. App. 712, 716, 639 P.2d 706, 708 (1982))...

We hold that the evidence of Mierz's assaultive behavior was properly admitted. Even if the entry or arrest by law enforcement officers was unlawful, the exclusionary rule does not foreclose admission of evidence of the assaults where the officers are identified as such, are performing official duties in good faith, and there was no exploitation of any constitutional violation. Apodaca is overruled to the extent that it conflicts with this decision.

We hold that "official duties" as used in RCW 9A.36.031(1)(g) encompass all aspects of a law enforcement officer's good faith performance of jobrelated duties, excluding conduct occurring when the officer is on a frolic of his or her own. Hoffman, 116 Wn.2d at 99-100. RCW 9A.36.031(1)(g) includes assaults upon law enforcement officers in the course of performing their official duties, even if making an illegal arrest.

RCW 9A.36.031 provides:
(1) A person is guilty of assault in the third degree if he or she, under circumstances not amounting to assault in the first or second degree:
(a) With intent to prevent or resist the execution of any lawful process or mandate of any court officer or the lawful apprehension or detention of himself or another person, assaults another; or
. . . .
(g) Assaults a law enforcement officer or other employee of a law enforcement agency who was performing his or her official duties at the time of the assault.

So I am not convinced that the Indiana case is a significant change. You really will lose in a court of law if you assault(resist) an on duty police officer even if the officer is unlawfully arresting you.

[Brett Bellmore]

What you've established is that Indiana isn't out there completely by itself in this effort to erase a right that's existed since the Magna Carta, and which is supported by http://supreme.justia.com/us/177/529/case.html>current Supreme court precedent.

Which is regrettable, but hardly establishes that the idea that you can defend yourself against an illegal arrest or search is nonsense. It's good law in most of the country, for all that a significant faction in the legal community loath it, and are eager to overturn it.

[Brett Bellmore]

I should add that it's usually considered highly imprudent to defend yourself against an illegal search or arrest, unless you've got good reason to believe the cops in question are planning on planting evidence and/or killing you. Being legally in the right doesn't generally do you a whole lot of good if they shoot you down illegally.

[hairshirthedonist]

Does anyone disagree?

I'd like to, but I can't. I'd like to be able to say that it shouldn't be politically impossible for people to seek damages when, say, the police have the wrong friggin' address and trash the wrong house, rather than trashing the house of someone who is later found not guilty in court, but who was a suspect on reasonable grounds at the time of the police entry. But that's far too complicated a distinction for American politics, despite being fairly simple. So, no, I still don't disagree, as much as I'd like to be able to.

[Countme-In]

I'd advise too that if you do decide to resist an illegal arrest or search, don't start berating the S.W.A.T team members about your libertarian plans to bring in a privatized, non-unionized police force who would be more than happy to have the piece-work of violating your Constitutional rights for half the pay and without health benefits.

And, in the spirit of community volunteerism in this time of fiscal discipline, I'd suggest drawing your own chalk outline before the cops break in and then arranging your body in it .... for efficiency's sake.

To save further time and tax money, read yourself your rights BEFORE the cops break down the door, because we've had to cease printing up those little Miranda warning cards as a cost-saving measure.

[Ugh]

OT - so, Glenn Greenwald notes that Obama has not exactly been living up to his statements on the campaign trail. Obviously this will not be surprising to anyone (I hope) and is of course consistent with politicians generally.

I do wonder, however, whether the area Glenn notes in the linked post (and elsewhere) should be particularly troublesome. To wit, candidate Obama made several basically unequivocal statements about the President's war powers (in Glenn's linked post) and other issues related to the War on Terror™, such as Gitmo, assertion of the state secrets doctrine, etc. Very few, if any, of these statements have been lived up to, AFAICT.

This alone could be chalked up to the basic "a politician will say anything to get elected" protest (Hi Brett!), but it seems to me there are a confluence of conditions here that should give everyone pause: (i) clearly contrary statements by the candidate vs. actions in office; (ii) a change in position not seemingly justified by subsequent events; (iii) no explanation for such a position change; (iv) no (or very little) questioning of such a change by the press; (v) of a matter under direct control of the candidate once president (e.g., not requiring congressional consent); and (vi) on matters of great import (such as making people dead dead dead).

This probably happens all the time and I don't notice. That said, I would expect, at least, some member of the White House press corps to, e.g., stand up, recite candidate Obama's comments on presidential warmaking, compare them to his justifications for the war in Libya, and ask Obama to reconcile the two, and then have the support of the rest of the WH press corps (e.g., they wouldn't move on to another topic should POTUS not answer the question).

This seems not to be and I wonder whether it is amenable to change. No, methinks.

[Phil]

I'm still trying to figure out a) which of Alito, Roberts, Thomas and Scalia Brett thinks is a "living Constitution" type rather than, as Roberts put it, "calling balls and strikes" and b) whether Brett will ever be able to offer me a definition of "cruel and unusual punishment" which does not include the phrase "times change" or it's functional equivalent.

[Ugh]

I'm still trying to figure out a) which of Alito, Roberts, Thomas and Scalia Brett thinks is a "living Constitution" type rather than, as Roberts put it, "calling balls and strikes"

Well, quite frankly, any legal question that reaches the supreme court almost certainly allows any particular justice to reach the result they desire as a policy matter (if they desire it enough) almost by default. The legal question at issue would have already gone through some sort of administrative or private dispute resolution process (in most cases), as well as the district and appellate court (or courts, usually, federal and/or state) and thus it's not like SCOTUS is deciding whether 2+2=4.

So, in a sense, what restrains justices is their own sense of shame, however they may cloak it in their "judicial philosophy", as well as stare decisis in many instances. This may explain the result in the case at issue in the OP, though, as I note above, even smart people can be stupid.

[bobbyp]

"....unless you've got good reason to believe the cops in question are planning on planting evidence and/or killing you."

A wholly legitimate default assumption in some neighborhoods or for some who find themselves in the 'wrong' neighborhood after sundown.

But in the extreme case, we already live in a society where you are subject to extrajudicial execution at executive whim, without warning, without appeal, so why get excited about this?

[Slartibartfast]

unless you've got good reason to believe the cops in question are planning on planting evidence and/or killing you

OTOH when there are men outside your house (or, worse, bursting into your house) who have not identified themselves, and it's DARK so you can't see the uniforms, and their uniforms are in any event also dark, and you've been given no warning whatever, and you have no reason to imagine why these guys might be police because you haven't engaged in anything resembling criminal activity, your first thoughts just might be in the direction of defending yourself and your family.

I don't see anything wrong with doing that. Your rule of thumb can't possibly be "don't defend yourself against people breaking into your home because they just might be cops", can it Brett? I'm guessing no, and hoping I'm right.

[Hartmut]

Not to forget that the mob has used police uniforms on occasions for that very purpose.
"Darling,sombody just shot up our neighbour and blew up the flat." "No problem honey, it's just the police looking for or delivering pot."

[hairshirthedonist]

Your rule of thumb can't possibly be "don't defend yourself against people breaking into your home because they just might be cops", can it Brett? I'm guessing no, and hoping I'm right.

I think Brett's point was simply that, when you know you're dealing with cops, it's smarter to be compliant, short of unusual and extreme circumstances. Resisting, even legally, might end up being a, well, sub-optimal choice.

I can't possibly think that Brett (Brett!) wouldn't advocate self-defense in an apparent home invasion. I mean, jeepers... Brett? What are those precious guns supposed to be for, anyway?

[cleek]

What are those precious guns supposed to be for, anyway?

pissing-off liberals!

[Brett Bellmore]

Just because you've got the legal right to do something, and OUGHT to have the legal right to do it, doesn't mean you should do it.

You've got the guns to annoy liberals, (You're right, Cleek, it's a popular reason!) to target shoot, to hunt, for self defense, because you think guns make cool collectibles, because your dad passed them on to you, and you like having something of dad's around, for the hell of it... Any reason, or no reason at all, is good enough to eat at Bonefish Grill exercise a constitutional right.

[Ugh]

Any reason, or no reason at all, is good enough to ... exercise a constitutional right.

Is there a distinction to be made here between keeping/bearing arms and shooting them off?

[Brett Bellmore]

Well, sure: You don't need to be sure of your downrange when you're just keeping them.

Seriously, I'd say "no". Look, suppose you're keeping books. The government's got no business regulating that, short of your exceeding load limits on the floor of a second story apartment. It can't regulate the ownership and reading of books based on some hostility to reading.

You could collect books on how to synthesize explosives, and the government couldn't treat you as a mad bomber, without some independent evidence you meant to blow people up. You could collect books on chemistry, and the government could not use this as evidence that you meant to run a meth lab.

Which is not to say that the government couldn't, given that other evidence, use the purchase of those specific books as evidence. But the government can't presume that exercise of a constitutional right is done with ill intent, and on that basis foreclose non-wrongful exercises of the right.

This is something liberals generally recognize with respect to speech and publishing, (Though you've gone a long way towards forgetting it where the subject is politics, due to your mania for campaign 'reform'.) but forget the instant firearms are involved.

But, constitutionally, books=guns. That's the best way to understand it.

[Hartmut]

I am illiberal enough to believe that there are some books that should not be allowed to be traded unregulated and some should be banned outright except for certified experts*. So, to a degree I can follow the books=guns argument ;-)

*not primarily talking politics here. I was rather shocked to find, on the open shelves of a public library, a book from the inter-war period with recipes for all chemical warfare agents used in WW1. If I say recipes, I mean detailed instructions how to produce them on both the scale of the 'home' lab and industrially. Although one could not borrow the book, there was no restriction on photocopying on location. I was relieved when it was removed at a later point (or did somebody steal it?). That one belonged both literally and metaphorically in the poison cabinet.

[Brett Bellmore]

Yup, you're "illiberal", my experience is that a lot of 'liberals' are, which is why I generally use sneer quotes around the word.

This country has become a very different place from the nation of my birth. In some ways a better place, but in many ways worse, and you've just pointed out one of the ways it's changed for the worse. The idea of knowledge that's too dangerous for general distribution is a very illiberal one. And one our government is embracing with ever increasing vigor.

And, ironically, that's not so much being driven by conservatives.

[Phil]

He lives in Germany, dum-dum.

[Phil]

And that's pretty hilarious considering that conservatives are responsible for the global gag rule on abortion, are responsible for just about every heavy-handed FCC penalty for someone dropping an F-bomb or flashing a boobie, are responsible for the current bill making it's way through Tennessee forbidding talking about homosexuality to K-8 students …

Oh, why bother, Just when I think you've reached a nadir of dumb, you surpass it.

[liberal japonicus]

Phil, just because the knobs go to 11, it doesn't mean you have to turn that up so far. Thanks.

[Slartibartfast]

Phil's a musician. If the scale goes to 11, then 11 will be used.

Partially in Brett's defense, his mistake (the assumption that his interlocutor is also American) has been shared by many, many others, including me.

Which, you know, may not be that good of a defense. More coffee is needed.

[Hartmut]

Btw, the book I spoke of was a translation from Italian and in hindsight affirms my prejudices about the way Italians write about how to kill people in new and improved ways. At least from the Renaissance on I again and again find that the authors seem to get* off on the thoughts. German authors tend to get clinical and/or devote extreme efforts to safe handling practices.
At the university I had to work through a lot of treatises on such topics, so I think I know at least a bit about it. That included a manual from the Eastern German military containing a chapter about the best way to poison somebody and getting away with it. Totally devoid of any emotion. I stand by my position that something like that should not be allowed to lie around where just about anyone has access. Some books are in my opinion the equivalent of loaded guns.

*not to say jerk

[Brett Bellmore]

I didn't say that conservatives aren't regrettably fond of censorship. I said that liberals are fond of censoring knowledge they think is dangerous. That you're prey to the nasty idea that there are large areas of human knowledge which should be restricted to people with an employment justification for possessing it. And you're doing a good job of demonstrating that.

[Hartmut]

You're overgeneralizing again and the way you state it it can only be interpreted as this being mandatory to qualify as 'liberal'. I did not fill out any membership application, so I can of course not vouch for this not being the case. On the other hand the chemical societies I am a member of have it in their statutes that no member may participate in the development or use of chemical weapons. I assume that includes not to teach others about it. In the strict sense this is censorship of the acquisition of knowledge and I fully agree with that. I personally know some (usually underage) hobby chemists that would try out of sheer curiosity to synthesize even the worst stuff if they got the recipes*. At least one of them got a visit by the police when he tried to order the ingredients for certain explosives (years before 9/11). I am pretty sure that he did not intend to blow up anybody but also that he had no idea what a kilogram of that stuff could (and likely would) have done. I am also glad that most people do not know what can be done with stuff found in most broom closets (or under the kitchen sink).

*at that I age I might have done given the opportunity, and in hindsight I am greatful I did not get it.

[Countme-In]

Brett, if you ever convince Hartmut to divulge what he knows about blowing sh*t up, please pass that knowledge on to us here.

Knowledge can be useful.

[Hartmut]

Explosive sh|t was a potentially war-winning British idea in WW2*. For inconceivable reasons they voted for bouncing bombs instead and as a result needed the US to come to their help.

*No joke (apart from the war-winning). The idea was actually presented during the Africa campaign based on the 'fact' that German drivers would go out of their way to drive through any sh|t on the road. The idea got not rejected for being silly but because of practical problems with dispersal ;-)

[Hartmut]

To aphorise my opinion:
Knowledge that can kill should be kept from those that will.

[Brett Bellmore]

To aphorism mine, "Those who will should be kept in jail, after trial by a jury of their peers, the rest of us should be left the freak alone.

[hairshirthedonist]

I said that liberals are fond of censoring knowledge they think is dangerous. That you're prey to the nasty idea that there are large areas of human knowledge which should be restricted to people with an employment justification for possessing it.

Are you suggesting that knowledge of chemical weapons isn't dangerous, Brett, and that liberals are wrong to think that it is? Is that a "large area of human knowledge?" Large compared to what? Or is it actually a narrow area of human knowledge, with very limited and destructive applicability?

I think plenty of people, many liberals included, can agree that ideas and knowledge should be generally freely shared and that we should be strongly biased against restricting the sharing of knowledge. But taking that as some sort of absolute strikes me as misguided.

Should I be allowed to access your social security number, birth date, credit card numbers, bank account numbers if I'm capable of doing so, since I don't necessarily have to use that information to steal your identity for my personal gain, Brett? I might just want to know more about you because you're an interesting guy, right?

[Brett Bellmore]

Knowing that, if you mix glycerine with nitric acid and a smidgen of sufuric, you'll get nitro-glycerine, is scarcely an invasion of anybody's privacy. It's the sort of thing you could hardly pass high school chemistry without being aware of, when I was a tyke.

No, there is no such thing as dangerous knowledge. There's such a thing as dangerous applications of knowledge, attributing the danger to the knowledge amounts to a denial of human responsibility for how we use our minds.

And, yes, knowing how to mix up explosives in the sink isn't a wide branch of human knowledge, but, then, it's scarcely the only field of inquiry 'liberals' want to suppress.

[cleek]

but, then, it's scarcely the only field of inquiry 'liberals' want to suppress.

yeah. you let us know when nominal "conservatives" are done trying to ban entire religions from the US.

[hairshirthedonist]

There's such a thing as dangerous applications of knowledge, attributing the danger to the knowledge amounts to a denial of human responsibility for how we use our minds.

Really? Do you think someone is suggesting that, say, were a terrorist group to develop and deploy chemical weapons on a major subway system, killing hundreds of people, those terrorists shouldn't be held responsible because it was the knowledge of the chemical weapons that was dangerous, rather than the terrorists? I really don't get what you're trying to say here.

The knowledge is dangerous because it is a prerequisite to the application of the knowledge. The logic isn't really that complicated.

And, yes, knowing how to mix up explosives in the sink isn't a wide branch of human knowledge, but, then, it's scarcely the only field of inquiry 'liberals' want to suppress.

Which liberals? Which fields? Do all the liberals agree on which fields to suppress, or do some want to suppress certain fields while others want to suppress others? Is there a good comparison on liberal suppression versus conservative suppression? What about human reproduction and sexually transmitted deseases? Is this a remotely worthwhile line of questioning, or is it just broad-brush, unverifiable, unfalsifiable clap-trap?

[Slartibartfast]

Knowing that, if you mix glycerine with nitric acid and a smidgen of sufuric, you'll get nitro-glycerine, is scarcely an invasion of anybody's privacy. It's the sort of thing you could hardly pass high school chemistry without being aware of, when I was a tyke.

Knowing what ingredients make nitroglycerine isn't dangerous. Possessing sufficient knowledge that you can make and use nitroglycerine without blowing yourself and others around you into several pieces is.

And, yes, knowing how to mix up explosives in the sink isn't a wide branch of human knowledge, but, then, it's scarcely the only field of inquiry 'liberals' want to suppress.

I'd say that respect and regard for classification rules is hardly limited to the liberal portion of the political spectrum, Brett. How do you stand on the whole Wikileaks question? Are you an Assange supporter? After all, he was just setting the information free.

[Hartmut]

If stupidity would just kill the stupid we could talk about it.

Btw, the very fact that I have studied chemistry has kept me from trying some stuff, including making my own pyrotechnics. With just recipes at the wrong age I might have blown up myself. So, more knowledge may be safer but as long as it can not be guaranteed that people will actually reach the knowledge stage securing responsible behaviour they should not be allowed on the path that first gives them the ability to do great harm.

[Hartmut]

Just for clarity. It's a different thing to know in general how e.g. nitroglycerine is made and being able to do it safely oneself. During my PhD thesis there was an occasion where I could have made good use of a certain group of indicator compounds that was not in the commercial catalogue. I would have had to make them myself. Unfortunately the necessary reaction is very tricky to control and the result of any error would have meant a large reaction vessel full of temperature sensitive explosive stuff...boiling. I dropped the idea.

[Slartibartfast]

It's a different thing to know in general how e.g. nitroglycerine is made and being able to do it safely oneself.

Yep, I came to that conclusion myself. I actually had the ingredients to make it, then realized that I would be making a highly unstable compound via an exothermic reaction, which to me had DANGER! flashing behind it.

Plus, how would I store it? In my middle school science lab refrigerator, with a big blaze-orange sticker on it that said DANGER: HIGH EXPLOSIVE?

I also chickened out on making fulminate of mercury. I think the whole business of considering making some nitroglycerine put me on edge. That stuff just made the thermite reaction and the zinc-sulfur reactions I set off in the lab look positively safe.

Unfortunately the necessary reaction is very tricky to control and the result of any error would have meant a large reaction vessel full of temperature sensitive explosive stuff...boiling.

The very imagery that put me off nitroglycerine.

I dropped the idea.

Hopefully onto something very soft and shock-absorbent.

[Slartibartfast]

I actually had the ingredients to make it

Thought I had them, anyway. Not sure I had acids of sufficient concentration.

[Hartmut]

That was the other consideration. To do it effectively and safely the acids must be highly concentrated and pure. That variety is rather expensive. Typical impurities in technical grade acids have the nasty tendency to destabilize the product. It took some exploded factories before gun cotton could be safely produced. I don't know how many workers got killed producing picric acid before it was dicovered that mere traces of metal are enough to turn the stuff from comparatively safe into a game of high stakes http://en.wikipedia.org/wiki/Mikado_%28game%29>Mikado. Don't stir the brew with a metal tool*!
---
Not sure it's true but I have read that frozen dynamite/nitroglycerine is more dangerous than the same stuff at room temperature (tendency to spontaneous explosion). I know that cordite has to be stored in a rather narrow temperature range to be safe.

*OK, few would given that the mixture is based on strong mineral acids ;-)

[Hartmut]

concerning dynamite: I just looked it up. Safe while frozen but prone to spontaneous explosion during thawing

[Ugh]

In Brett's partial defense, I don't think he cares which side is doing the knowledge suppressing, he's just more apt to point out what he thinks is the left-side suppression and hypocrisy given the ObWi-bent.

On the merits, do I think it would be great if there was, e.g.,a short publication offering "3 Simple Steps for Mustard Gas" were widely available? No. Would I support the government prosecuting people for simply possessing such knowledge? No. However, those aren't the only two options, it seems to me.

[hairshirthedonist]

In Brett's partial defense, I don't think he cares which side is doing the knowledge suppressing, he's just more apt to point out what he thinks is the left-side suppression and hypocrisy given the ObWi-bent.

Ugh, I agree that Brett is more apt to point out left-side suppression and hypocrisy, but that doesn't explain this:

...The idea of knowledge that's too dangerous for general distribution is a very illiberal one. And one our government is embracing with ever increasing vigor.

And, ironically, that's not so much being driven by conservatives.

Unless I'm reading this wrong, he isn't saying that commenters at ObWi need to be made aware of the liberal side of suppression, rather that the liberal side is worse and, therefore, more objectionable. I don't doubt that he would object to at least some instances of conservative suppression, so I think you're partly right about his not caring which side it comes from. But I don't think it's just *you guys need to be more aware of this side because you're only paying attention to the other.* I think it's also *this side is worse than the other.*

(And, for the record, I don't think anyone should be charged with a crime for simply possessing a manual on mustard gas, either.)

[Ugh]

Well, he's saying knowledge suppression is il-liberal, but then saying it's not currently driven by conservatives, which is "ironic." So, I think he's saying a liberal in general is against knowledge suppression but yet the group of such is doing so anyway (or are driving it).

I don't know what he has in mind in terms of liberals driving knowledge suppression these days (that the Democrats are now in charge of the Executive branch? University professor driven knowledge suppression?), I probably disagree but can't say for sure.

So, hence, the partial defense.

[sapient]

At least something good happened for prisoners' rights today.

[Hartmut]

There is in my opinion a difference between possession of knowledge and spreading of the same.
I know where to get the recipe for e.g. sarin. That should be no problem unless I decide to teach a course about how to do it at home to eager youngsters.
Over here the law makes that distinction. There is an outright ban on some books but that just means that one cannot buy and sell them on the open market, advertise for them etc. Possession itself is not illegal, nor is treating them in an academic context. On research the opinion (legal and otherwise) is split. In (controversial) legislation certain research is illegal per se (best known of course human cloning).
To ride Brett's hobby horse: A responsible person may own a gun legally but if that person leaves it lying around loaded and with safety switched off where small kids are certain or at least likely to find and to play with it then the law should (imnsho) come down on him or her like several tons of bricks.

[Brett Bellmore]

Obviously, over here we're committed to a different approach, and it does not involve banning books.

[Hartmut]

Unless of course it's communist propaganda. In at least one state possession of that is still a felony.

[Countme-In]

When sarin gas is outlawed, only outlaws will have sarin gas.

Libertarians will remain flatulent through it all.

[Countme-In]

This discussion is an interesting academic exercise.

Let's say I live in a house with a conservative neighbor to the right of me, a liberal to the left of me, and a libertarian behind me (we'll leave out the fact that the latter is perched on his roof at odd times of the night with a crossbow and a searchlight hunting skunk in his yard; actually had a neighbor like that)

On my bookshelves I have lined up Mein Kampf, The Communist Manifesto, The Catcher In The Rye, Twelve Lethal Gases and Their Dispersal Rates At Your Fingertips, Biological Warfare: How Not To Get Any On Ya, The Koran, The Taliban Guide To Western Architecture and Building Codes, Mao's Little Red Book, The Bible (God's Household Guide To Killing Everyone, subtitled Let Me Do The Killing, Thou, But Don't Tell Bibi Netanyahu, Whatever You Do), The Confederacy: A Phoenix Rising For the 21st Century?, Waco and Me: A Primer, Greasy Cracker Bohunk Sh*thead Ascending: If Eric Erickson's Wife's Shotgun Could Write A Memoir, and, my favorite candidate for dangerous ideological tract and predicted accessory and guide to murder in the United States for the next 30 years or so --- Atlas Shrugged.

Let us further stipulate I alternate playing Helter Skelter, the Muslim call to Jihad, Phil Donahue's conversations with Ayn Rand, and Hannibal Lechter's Oral History of Sweetbreads on my stereo.

Natch, I'm quiet and keep to myself. You one met me briefly down at the local Costco on Highway 18 stocking up on the 64-packs of rat poison and the four-gallon vats of party dip. Nice guy, not much eye contact.

Now, can we predict which of all these details roust out the statist in the conservative, liberal, and libertarian neighbors, respectively?

In other words, who calls the cops (or the local militia) for a chat, and why?

No fair moving, the property market being what it is.

[CCDG]

"Let's say I live in a house with a conservative neighbor to the right of me, a liberal to the left of me, and a libertarian behind me (we'll leave out the fact that the latter is perched on his roof at odd times of the night with a crossbow and a searchlight hunting skunk in his yard; actually had a neighbor like that)"

I never get to play.

[Countme-In]

O.K., CCDG, you get to be the moderate neighbor just across the middle of the street who endlessly delays his concerned wife's call to the authorities because he wants to discuss the finer points of federal versus state versus local intervention and the balance thereof with the other neighbors, after I have hosted a book club at my house for the neighborhood kids during which we read and discuss the text tooled into Texas Governor's Rick Perry right cowboy boot which starts out with "Don't Tread On Me" and then retreats into the small print outlining instructions for shoving a fairly large, bulky medical imaging probe into the vaginas of 14-year-old rape victims who might just want to make a choice 72 hours from now.

I serve refreshments: the cream of mushroom cloud soup with cholera-infused aoili as a starter, the plutonium and jalapeno buttermilk biscuits, the buckshot-flecked and leg of uninsured diabetic mailman with gunpowder rub and jus de gangrene, followed by mother's infamous sorbet of uncertain origin.

Does everyone know where their marks are now. Jeez.