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Hiibel
June 26, 2004 1:34 PM   Subscribe

We All Lose if Cops Have All the Power (reg. req.) according to Larry Hiibel (previously discussed here) after the Supreme Court decided against him. Some legal experts are not concerned by this decision, others think that the implications for civil liberties are dangerous. Perhaps more important is whether this is part of a pattern of weakening the Fourth Amendment.
posted by homunculus (10 comments total)

 
Fantastic post, homunculus.

And Dahlia Lithwick is a hack
posted by trharlan at 2:07 PM on June 26, 2004


Some trace the massive loss of individual rights and liberties guaranteed in the Constitution to the prohibition of alcohol, others take it all the way back to G. Washington's violent (and clearly unconstitutional) suppression of "The Whiskey Rebellion."

However, what *hasn't* been done is a systematic compilation of "rights erosion" that has happened over the years--and how it has been mitigated.

To explain: an infringement happens at the federal, state or local level. Say *one* county sheriff in a state decides that public protest is forbidden in his county.

First of all, he must enforce his new rule by arresting someone for publicly protesting. Then, if they cannot be coerced by plea bargain into pleading guilty, they must be convicted by a jury--or given a restraining order by a judge (which would change the nature of the charge from "protesting" to "contempt", much harder to appeal.)

Then, assuming of course that they have not been "neutralized", whatever they were protesting having come and gone, they could appeal. But appeals are worth far less than you imagine. *That* protestor would be freed, but the judge could only say, "If you send more appeals *of this type* here, I will free them, too." Which again, doesn't matter if other protestors are unable to protest in a timely fashion.

Now this game can go on as long as that sheriff is in office, but his replacement may not follow that policy, so the unconstitutional rule is no longer enforced.

In some cases, the violation can go on for many years, such as NYCs gun prohibition law, which for decades was patently unconstitutional, but no appeal was allowed. If necessary, they would drop the case, making the appeal moot, to prevent the law from being overturned. Few could afford to pay for appeal in the first place.

In other instances, like restraining orders, they are used only so infrequently, such as during prohibition and against LA street gangs, that they are never challenged on a federal level. Individuals so "restrained" that almost no matter what they do, they can be arrested for "contempt."
Restrained from large parts of towns, from meeting people, from using phones, from driving or riding in a vehicle, etc.

All sorts of profane laws are unconstitutional, but there really isn't a nationwide way to challenge them, no Department of Bad Law Review.

So the bottom line is that if a policeman demands to see "your papers", you must make a judgement call as to whether you are willing or able to ask him "why?" In most circumstances throughout the country, the police will actually tell you, or won't ask for your papers in the first place. So though they *can* be arrogant idiots, they probably won't.
posted by kablam at 2:19 PM on June 26, 2004


What's In a Name?
posted by homunculus at 4:32 PM on June 26, 2004


really troubling, and the spectator is right--this isn't just a name, but producing id on demand for no reason.
posted by amberglow at 5:18 PM on June 26, 2004


because the cops they dont need you and man they expect the same
posted by Satapher at 5:38 PM on June 26, 2004


Good post homunculus. It's interesting that the Public Defender's office is who took this all the way to the Supremes. I didn't know they would do that.

IANAL, but the ruling strikes me as a further reduction of citizen protection under the 4th and 5th amendments. It is indeed the slippery slope to a national id...or so I perceive it to be. Then again, we all know that I've been known to don the tin foil hat and rage at the machine. I tend to assume nefarious motives whenever the government appears to have more rights than the population.


I liked reading the dissenting opinions...I only wish that there had been one more justice that valued our Constitution more than oh, I dunno...duck hunting.
posted by dejah420 at 10:16 PM on June 26, 2004


Was the fact that the man was in a car a significant factor? It's my understanding that part of the priviledge of driving is that you have to be willing to produce ID when asked. In which case, will this decision still affect people being asked for ID when they are not driving or in the driver's seat of a car?
posted by jb at 4:10 AM on June 27, 2004


But the man was not the driver. At the time the officers arrived, he was not in the car.

To be sure, the way the defendant's statements read, he sounds all innocent. The actual film shows it was not quite that clean. They DID state why they were there, although they failed to restate their reason when asked.

Hiibel was being an ass, for sure. God bless America, we are supposed to have a right to be asses when we wish, it ain't no crime. Although, as I think about it, the man was having a family argument, the cops were intruding.

But the cops were asshats too. They could have repeated their reason for investigating. The name was NOT primary to the investigation, but secondary. Besides, they could have run the plates to get a name. The primary issue was if anyone was hurt, and if anyone was being coerced.

I suggest that defensiveness against police is a proper American attitude. Police are supposed to be working FOR US. The Constitution is to protect US against THEM. The purpose of government itself is to secure and defend our rights. Government is only granted the privileges to do what the constitution says. WE the People have rights, only some of which are explicitly listed in the Constitution--Which does not GRANT those rights, the rights are ours by NATURE.

What I would like to know, where is the civil suit for brutality, on the daughter's behalf? Since when is it okay for hysterical, juvenile, females to get thrown on the ground and handcuffed?

And isn't it just SO interesting, this SCOTUS decision was 5-4? Funny how many decisions are 5-4.
posted by Goofyy at 7:10 AM on June 27, 2004


So, is it too late to sign up for that Libertarian wet dream exodus to New Hampshire? 'Cuz I'd gladly trade in my silly ideals of corporate responsibility and societal compassion for the weak if it meant I could walk down the street unharassed.
posted by Skwirl at 1:09 AM on June 28, 2004


Miranda Takes a Hit
posted by homunculus at 11:01 AM on June 28, 2004


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