Thursday, May 06, 2010

The Slippery Slope

What slippery slope?

1. Eliminate probable cause and reasonable suspicion. Because of security risks, your papers can be checked by officers of the law at any time and for any reason the officer deems appropriate.

2. Because we can always trust officers of the law, and never need invasive oversight to handle local matters.

3. If you do not have the papers deemed appropriate, you can be detained until your information is verified, or until you are transported to a Federal facility.

4. Because your information is guaranteed to be verified quickly. Detention facilities and proceedures are always clean and efficient where one finds only legal and humane treatment of detainees and prisoners. The liklihood of mistaken identity, cruel and unusual punishment, and systematic failure is very small. Due process is rarely required to address such issues, as the system is self correcting.

5. Because of the inconvenience of due process, we can now look into stripping crime suspects of their citizenship upon being charged with a crime.

Not "convicted," charged. Mistakes are inconceivable.

6. Acheive perfect safety.

Please send Thank You notes to Governor Jan Brewer and Senator John McCain of Arizona, and Senator Joe Lieberman of Connecticut. And remember, health care reform is a plot of tyrants and totalitarians to take inalienable rights away from you and your helpful for-profit insurance company agents.

Have a nice day!



patsbrother said...

Reasonable articulable suspicion is what any officer needs to stop and investigate any person (citizen, legal resident, or illegal) for any crime. That is bedrock constitutional law. The Arizona law does not change that. Stop saying it does. It does not. In contradistinction, it mreely codifies established constitutional law. Which is unnecessary, seeing how there's the Constitution.

Now, the Arizona law does add that race, color, or ethnicity - by itself - will not rise to reasonable suspicion. Which means the officers involved would have to articulate enough additional information to establish reasonable articulable suspicion sufficient to survive judicial review. Which means this law actually does more to define reasonable articulable suspicion MORE than almost any other statute in the nation.

If you or I are stopped due to an officer's reasonable articulable suspicion, they can detain us for a reasonable period of time to investigate further. Once the length of time becomes unreasonable, they have to let us go or the 4th Amendment will require supression of the evidence as the fruit of an unreasonable seizure. They ABSOLUTELY CANNOT detain you indefinitely, and the officers will actually subject themselves to civil liability if they knowingly violate clearly established law on this issue (under 28 USC sec. 1983). Whether such a detention is reasonable or unreasonable will be determined by courts when viewing the facts in the totality of the circumstances. The Arizona law does not change this.

A court will always have the duty in cases before it to ensure that due process is followed. The Arizona law does not change this.

Do unreasonable seizures still occur in the enforcement of any law under the sun due to the decisions of individual officers? Yes. Will it be courts' duty to suppress the fruit of such a seizure when this unreasonableness is brought to their attention? Yes. The Arizona law does not change this.

Further, to strip someone of their citizenship, the government must still go through legal process. This already exists not only in the statute Sen. Lieberman mentions in your link, but also in the case of naturalized citizens who made material misrepresentations on their applications for citizenship. The government must file the action with the court and produce sufficient evidence to convince that court that the requirements of the statute are met. As this is a civil matter, charging you with a criminal offense is not a prerequisite at all.

Apparently, there is nothing that your criminal-law-practicing brother can say to get you to stop misrepresenting the Arizona law as it intersects with constitutional criminal law, no matter how little you know of it.

Sadly, the Arizona law won't change this, either.

Your interminable sarcasm is making your blog more and more of a chore to read. You might think it makes it more interesting, but it just makes me more likley to stop reading. I say this not because I disagree with what you're saying. Oftentimes I LOVE that you say things with which I disagree. (See, e.g., my many responses throughout the years.) However, trudging through the pathos in which you now consistently wallow is like having a phone conversation with Shannon G. back in the day when he'd call people up to say he was depressed and cry. Please return to normalcy.

Cousin Pat from Georgia said...

I find it troubling that you dismiss my very real concerns, that are to date, echoed by other individuals and widely examined.

The text of the law was so problematic, they went back and changed it, but could have expanded it in the process.

This is not stuff I'm making up to get attention. This is not some hyperbolic extrapolation of some future worst case scenario.

These are real concerns over the real text of real laws that exist right now. These concerns are echoed by reasonable sources from individuals with a wide variety of professions (including a few lawyers with opinions different from yours).

These real concerns over the law combine with my concern over real events (that have happened continually over our shared history and into our very recent past) where it took incredible effort on the part of everyday citizens (and no small effort from federal authorities once involved) to force the system to honor guaranteed and inalienable rights.

On top of all that, we have powerful legislators suggesting we erode those guaranteed and inalienable rights further upon being charged with a crime.

Not convicted, charged. His words, not mine.

I'm sorry to hear it is so much of a "chore" to read the valid and legitimate concerns of individuals who disagree with you.

patsbrother said...

It is not a chore to read disagreement. It is a chore to read sarcasm + sarcasm + sarcasm. This does not apply just to this issue. This applies to almost everything you've written in a while. On every subject. This is wholly apart from anything you believe regarding the Arizona law; this goes to how you are expressing those beliefs.

For example, just to go with the first sentence of your first point, you indicated they eliminated reasonable suspicion. This is demonstrably false, as that is directly part of a written law I know you've seen, and thus I know you know differently. But then you didn't really say that, did you? You only sarcastically said it, which means you might now weasel out your statement saying you didn't really mean it because it was just sarcasm. Which leads me back to that other issue about whether you will actually make an argument or just spew sarcasm.

Beyond that, I have to ask if you are scared that the federal government has had the EXACT same ability to stop and detain and then arrest people? All Arizona did was make a federal crime a state crime as well. A federal agent can stop and detain someone upon reasonable articulable suspicion that they are an inadmissible alien (read: an illegal) whose presence here is a removable offense under federal law.

Beyond that, you appear very, very concerned that someone might act in violation of this written law. It's strange to say you oppose a law because someone might break it and breaking that law would be very bad.

Are you also concerned by the Mexican gang violence in Arizona? Supposedly, in Phoenix, they had 380 kidnapping incidents in 2008 alone. THREE-HUNDRED EIGHTY. Making it #1 in world...if you exclude Mexico City. This does not affect politicians in Washington, who direct federal agents' focus. This does, however, affect Arizonans. So they passed a state law that does everything the federal law does.

NOTE: Bob Barr went on about federalism concerns. Which is the separation of state and federal spheres of influence. He also does not appear to understand that removable offenses are defined in federal law, which the Arizona law references again and again.

My focus today is to get you to understand: that the Arizona law specifically references reasonable suspicion; that reasonable suspicion of criminal wrongdoing is what the Constitution has long required to authorize a stop or a detention for the purpose of further investigation; that reasonable suspicion is a constitutional and legal term of art; that in legal proceedings it is the court - and not officers - who determine whether in light of the totality of the circumstances reasonable suspicion existed; that legislatures are not allowed to interpret the Constitution, as that is the province of courts; and that federal agents empowered to enforce the nation's immigration laws have long enjoyed the constitutional authority to stop or detain those they have reasonable suspicion to believe are here illegally.

Everything in that last paragraph that does not specifically reference the Arizona law are basic principles of what is known as an investigatory stop. Call up your father - who has taught the law on investigatory stops for decades - to confirm or deny whether those points are legally correct. Then, if some commentator on the web or on television tells you differently, you will know that they are wrong.

The Corwyn said...

At the risk of threadjacking, I figured it timely...because, ultimately, here's what "reasonable suspicion" results in...

Now, they raided that home on reasonable suspicion of marijuana possession. The footage speaks for itself.

patsbrother said...

As gently as I can put it, this is another example of someone using a legal phrase they don't understand.

You cannot raid a house based upon reasonable suspicion.

Unless you fall into a few narrow categories of exceptions (such as following the suspect in under "hot pursuit" or with his consent), you must have a warrant to enter a private building.

To obtain a warrant, law enforcement must convince an impartial magistrate that there is probable cause to either (a) arrest someone for a crime or (b) search for specific evidence described with particularity.

The article you cited references warrants, and the officers in the video specifically state they have a warrant. In this situation, you are dealing with a judicial determination of probable cause.

Note: probable cause does not mean more likely than not. Which means probable cause can exist even where later it is determined the person did not commit a crime, the evidence did not exist, or the evidence was not where it was beleived to be.

I can guarantee you this search was not conducted merely for simple possession. They expected to find more drugs in that house, but that didn't exactly pan out, did it?

Reasonable suspicion is less than probable cause, and can authorize a brief investigatory stop of your person or your vehicle. Reasonable suspicion can never authorize officers to enter a home to seize you or to conduct a search or investigation.

Side note: unless there's a hostage or a suspected arsenal, I think SWAT teams are a pretty stupid idea. What those asshats did is reprehensible. Nothing in the Constitution prevents stupidity like this; this is the result of local law enforcement wanting bigger toys and needing justification for buying them. If this is happening in your town, you need to do something about it.

For example, the people of Columbia, Missouri, need to give local law enforcement an excessively stern talking to and need to change the protocol for use of night-time commando searches (as in: only when absolutely necessary; see hostage comment above). Thank God they only shot a dog this time (as painful as it is for me to write those words is); it could've been a human being. These things always seem to end badly. You'd think they would have caught on by now.

Cousin Pat from Georgia said...

+ 1 Corwyn. I saw that video and was appalled. It reminds us that the erosion of civil liberties started long before terrorism and immigration were even concerns of the political and media castes.

Cousin Pat from Georgia said...

@ Sprout: I understand what "reasonable suspicion" is, my problem with this law, and my problem with many of the erosions of civil liberties we have suffered in the past, is that your term of art has continually been expanded to include almost any mundane activity.

Now, I understand the need to leave "reasonable suspicion" a vauge term with broad application (we cannot legislate parameters for the wide variety of crimes).

My fear is that officers will now be able to use any activity (new text of the law includes nodding and gesticulation) to construe reasonable suspicion.

That is an erosion. That eliminates any legal strength reasonable suspicion had. That's what I'm talking about.

Your point on the Missouri incident is well taken, though.

Especially "the people of Columbia, Missouri, need to give local law enforcement an excessively stern talking to and need to change the protocol for use of night-time commando searches (as in: only when absolutely necessary; see hostage comment above)."

Because the only way this kind of thing stops is when the people demand it stop.

patsbrother said...

As I said, legislatures cannot interpret the Constitution. They cannot set reasonable articulable suspicion lower than the Constitution, which is interpreted exclusively by the courts. If legislatures set the bar higher, then that would be a statutory (rather than Constitution) rule, which still would not effect that strange term of art I keep referring to.

If your only concern is that you think people will misapply the Arizona law, say so. In that situation, your concern lies not with the Arizona legislature but the executive branch entrusted to enforce the law.

Tim said...

Whoa, Pat, you have as good a relationship with your bro as I do mine. My brother lives in Texas and there are days when we can't agree that the sky is blue or that the sun rises in the east...



patsbrother said...

Strangely enough, Pat and I used to have those arguments as well.

But then we realized he was just colorblind and had gotten used to the sun rising over the largest nearby body of water...