Two doors down
June 8, 2007 7:42 AM   Subscribe

This happens a lot. I mean a lot. All over the place. All these stories are within the last five weeks. Inexcusable, some say. If they break in and cause damage, they have to pay, though, right? Not according to the U.S. Supreme Court, which says if your address is on the warrant, you get to pay, even if it's a mistake.
posted by Kirth Gerson (149 comments total) 6 users marked this as a favorite
 
Yeah, I read about that a long time ago. They don't replace stuff, they don't pay for the damage. They don't make any kind of public statement to alert your neighbors that it was a mistake & your family are innocent law abiding citizens. Seems they just come in, terrify you, break your stuff & say "whoops" as they walk out over the broken glass. There's nothing you can do.

Except sue Jack Osborne.
posted by miss lynnster at 7:54 AM on June 8, 2007


It could be worse. They could be Iraqis having their homes broken into three times a year.
posted by notreally at 7:55 AM on June 8, 2007


I don't have any control over police stupidity. What I'm wondering is the fastest way to inform them that they're in the wrong house, so they do the least amount of damage, and of course to prevent the inevitable power trip.
posted by antipasta_explosion at 7:58 AM on June 8, 2007 [1 favorite]


"It could be worse. They could be Iraqis having their homes broken into three times a year."

Yes, there are horrible things going on elsewhere, so we should just ignore this.
posted by itchylick at 8:02 AM on June 8, 2007 [3 favorites]


It could be worse. They could be burning down your grass hut in (insert region that US and rest of the world is currently ignoring/destroying).
posted by Gungho at 8:10 AM on June 8, 2007




Donate a few bucks to the local PBA and post the sticker they give you in a conspicuous place.
I suppose it wouldn't hurt to have one of them there red white and blue elephant stickers too.
And a 'support our troops' yellow ribbon on the fridge. Yeah. That should help.
Speaking of that. Has anyone ever seen a support the troops ribbon INSIDE someone's house?
Seems like they're always displayed outdoors to, you know, show that you support the troops.

posted by notreally at 8:11 AM on June 8, 2007


I'd like to know why that's not a violation of the Fourth Amendment. If the address on the warrant says 905 Primrose, the police don't have a warrant to search 901 Primrose.
posted by fandango_matt at 8:12 AM on June 8, 2007


I'm going to post a big sign on my lawn that says:

"Attention Officers of the Law:
No illegal activity is taking place inside this house. If you believe you have a warrant to search these premises, please double-check your information to confirm that the address is not in error before entering by force. Thank you very much for your consideration."

That ought to allay any potential problems.
posted by Faint of Butt at 8:14 AM on June 8, 2007 [4 favorites]


Ahh. Sarcasm! Sometimes it is not as obvious to others as the commenter assumes it will be.
Sorry about that.
posted by notreally at 8:15 AM on June 8, 2007


Redressing police mistakes should be a state-level legislative thing; arguing on Constitutional grounds is too drama-queen-y.
posted by Heywood Mogroot at 8:17 AM on June 8, 2007


One would think the warrant would state the owner or renter of the residence and since one of those was wrong in the stated case, the warrant is invalid. Apparently not. Downright weird. I see them not wanting to open the floodgates to people suing the police for getting searched, but surely there is some duty on the part of the police to do due diligence (say that drunk...)
posted by Bovine Love at 8:18 AM on June 8, 2007


If the address on the warrant says 905 Primrose, the police don't have a warrant to search 901 Primrose.

As I read it, that is a violation. What's not a violation, by these rules, is when a typographical error means that the warrant itself reads 901 Primrose instead of the intended 905.
posted by ROU_Xenophobe at 8:20 AM on June 8, 2007


Love means never having to say you're sorry.
posted by weston at 8:21 AM on June 8, 2007 [3 favorites]


Yes, the first story is about the cops mistakenly raiding a house not on the warrant. At least some of the others are about having the wrong house on the warrant. In those cases, SCOTUS says you're SOL.
posted by Kirth Gerson at 8:24 AM on June 8, 2007


Wait, was that name Harry Tuttle or Harry Buttle?
posted by pax digita at 8:27 AM on June 8, 2007 [10 favorites]


What happens if they have a warrant for a Pottery Barn?
posted by srboisvert at 8:29 AM on June 8, 2007 [5 favorites]


For the actual case SCOTUS rule on (which does not necessarily extend to the other links):

The police apparently didn't know that the suspects they were after no longer lived at the residence, and didn't bother to check to see that the house had been recently purchased by new owners several months earlier.

Right address, but the owners had changed, so wrong occupants.
posted by Bovine Love at 8:29 AM on June 8, 2007


Redressing police mistakes should be a state-level legislative thing; arguing on Constitutional grounds is too drama-queen-y.

Rubbish. This is a perfect example of a Constitutional issue.
posted by Pope Guilty at 8:29 AM on June 8, 2007


It could be worse. They could be Iraqis having their homes broken into three times a year.

you've got to give the chickens a little more time to come home and roost
posted by pyramid termite at 8:39 AM on June 8, 2007 [1 favorite]


Police make mistakes. That is not always a violation of your constitutional rights if there is a scrivner's error on the warrant. In an imperfect world with imperfect information, provision always has to be made for accidents.
posted by dios at 8:42 AM on June 8, 2007


trying to back-fill every wrong via constitutional redress is not how a representative democracy is supposed to work.

Making honest mistakes is not an usurpation of the State's existing police powers. I'm too lazy to read the decision, but I expect that's what they say.
posted by Heywood Mogroot at 8:43 AM on June 8, 2007


Often when I read about something like this, I find my blood boiling about the action, and then I get further disgusted by the fact that a court finds it a-O.K. And then...

And then I realize that may not actually be what the court is saying. In fact, I'm coming to realize that a lot of court rulings that look crazy aren't the judges saying "this is the way things ought to be" but "this is what the law seems to say."

That said, I really don't know enough to judge which is the case here -- if the judges had a crazy day, or there's good legal foundation for this decision, or if there's an equally good foundation for a decision that would seem more commonsense. I'd be interested to hear from anyone who does.

In any case, maybe there's a need for legislatures to clarify this issue.
posted by weston at 8:45 AM on June 8, 2007


In an imperfect world with imperfect information, provision always has to be made for accidents.

That provision, it seems to me, doesn't have to be immunity from responsibility, but could well be something like a fund specifically providing for inevitable mistakes.
posted by weston at 8:45 AM on June 8, 2007 [1 favorite]


I don't expect people to not make mistakes, I expect that when mistakes are made, people will pay for the damages.
posted by 23skidoo at 8:46 AM on June 8, 2007 [1 favorite]


provision always has to be made for accidents.

Seems like the "provision" should be the responsibility of the person who actually made the mistake, not the person who was mistook.

Of course, that wouldn't mesh well with the authoritarian credo, which is that the government and the powerful are always right, and those they oppose are always wrong.

Perhaps accidental police destruction should be covered on renters or homeowners' insurance.
posted by delmoi at 8:47 AM on June 8, 2007 [5 favorites]


Screws fall out all the time. The world is an imperfect place.

You are correct, dios: provision does have to be made for accidents. People do make them. And, when they do make them, it's considered good form to clean up and pay reparations. It's why we have to carry car insurance, for example.
posted by adipocere at 8:47 AM on June 8, 2007 [4 favorites]


and when the cops lie on the affidavits to get the warrant, and kill the innocent woman during the raid, as happened recently in atlanta, it's only manslaughter, not murder. you know why?
because they weren't being punished for lying or killing the woman. the system doesn't care about that. they were being punished for being stupid and embarrassing their department, that's why. a murder charge might be demoralizing to our "thin blue line".
cops get a discount on their crimes the same way a secretary at a chevy dealership gets a discount on a new chevy.
posted by bruce at 8:51 AM on June 8, 2007 [10 favorites]


Well, I'd like to know what protections I'd receive if I make the honest mistake of protecting my family from an officer at the wrong address. Even if they yell 'Police!' right before breaking down the door, all the average person will immediately know is that some people have invaded their home.

As I recall, most people who have found themselves in that situation have ended up dead or in prison.

I'd like them to rethink the way they conduct their raids -- for everyone's sake.
posted by Kikkoman at 8:51 AM on June 8, 2007


As already pointed out, the post is misleading in that it conflates valid warrants executed at the right address but where innocents live with valid warrants executed at the wrong address. The former is kosher according to SCOTUS, the latter is not. It's not clear to me whether "valid" includes things like a clerk's typo and similar errors.

Anyway, these are literally Gestapo tactics and this increasing abuse of police power in the US is sickening and, frankly, evil. The rationale is officer safety and such with zero consideration to the victims of excessive, brutal, and terrorizing tactics. Worse, and tellingly, most of these are drugs raids, most are in minority, low-income neighborhoods and I can guarantee that radis on mistaken addresses and injuries to innocents, including children and the elderly, occur at much higher rates in minority neighborhoods than they do in white, middle-class neighborhoods. The police are essentially terrorizing poor people of color in the name of terror and its shameful that most of the rest of America just looks the other way.
posted by Ethereal Bligh at 8:52 AM on June 8, 2007 [2 favorites]


I'm hoping that this decision will lead to state legislatures making laws that require payment of damages in these cases, just as they stepped up to the plate after the Supreme Court's much-hated eminent domain ruling.
posted by grouse at 8:53 AM on June 8, 2007


In fact, I'm coming to realize that a lot of court rulings that look crazy aren't the judges saying ‘this is the way things ought to be’ but ‘this is what the law seems to say.’

Well, I'm pleased at your greater awareness of how these things actually work. So, this means you've finally finished your high school social studies course this semester?
posted by Ethereal Bligh at 8:56 AM on June 8, 2007


Sam Lowry: I only know you got the wrong man.

Jack Lint: Information Transit got the wrong man. I got the *right* man. The wrong one was delivered to me as the right man, I accepted him on good faith as the right man. Was I wrong?

posted by Citizen Premier at 8:56 AM on June 8, 2007 [1 favorite]


Incidentally, here is a link to the opinion which is always a must if you want to talk about the opinion. If you read it, it's pretty clear this isn't the outrage made out to be.

That provision, it seems to me, doesn't have to be immunity from responsibility, but could well be something like a fund specifically providing for inevitable mistakes.
posted by weston at 10:45 AM on June 8


That may very well be a good idea. But the establishment of that fund is something that should be done at the local level. It's not a constitutional matter.

Understand that the Court has a specific function of interpreting the law and not creating it. They have jurisdiction issues. And in the case of suing the government, there are sovereign immunity issues. You can only sue the government in limited circumstances. In this isntance, the Plaintiff's sought relief in civil court under 42 USC 1983 which the mechanism to assert a claim for deprivation of civil rights.

They went to the right address. The problem is that the people at the address were not the people the police encountered. A key point here is that
"When the deputies ordered respondents from their bed, they had no way of knowing whether the African-American suspects were elsewhere in the house. The presence of some Caucasians in the residence did not eliminate the possibility that the suspects lived there as well."
And as the Court points out:
"There is no accusation that the detention here was prolonged. The deputies left the home less than15 minutes after arriving. The detention was shorter and less restrictive than the 2- to 3-hour handcuff detention upheld in Mena. See 544 U. S., at 100. And there is no allegation that the deputies prevented Sadler and Rettele from dressing longer than necessary to protect their safety.
So the cops get to the right address. They see people other than those listed in the warrant. They detain them for less than 15 minutes until they can secure the area and ensure there is no threat and that the people they are looking for are not there. Then they leave. When you read the case, its facts, and the relevant caselaw, you will see that there is not a deprivation of a civil right that would deprive the state from its immunity. And since there was not, then the suit is without merit.

Remember, the Fourth Amendment protects you from unreasonable searches and seizures. Not all of them.

Since there was no claim, the Court had to toss it out.

It may be a good idea to have a fund to compensate such people, but that is a decision for the state. The Court had no authority to grant that in its ruling.
posted by dios at 9:01 AM on June 8, 2007


Again, I *highly* recommend reading the opinion and getting the facts. These people were taken to a dungeon and waterboarded. The whole thing lasted 15 minutes. No beatings. No car batteries on the nipples. So the rhetoric here about the evil Gestapo probably should be toned down a bit.
posted by dios at 9:04 AM on June 8, 2007


America sucks more every day.
posted by quarter waters and a bag of chips at 9:06 AM on June 8, 2007


just as they stepped up to the plate after the Supreme Court's much-hated eminent domain ruling.

Did that turn out well? I was given to understand that a number of those bills ended up essentially gutting environmental and land-use regulations in their respective states (including California and Oregon?)
posted by weston at 9:08 AM on June 8, 2007


Police make mistakes.

so do criminals ... but they still get put in jail

That is not always a violation of your constitutional rights if there is a scrivner's error on the warrant.

then the constitution is lacking ... or the people interpreting it are

In an imperfect world with imperfect information, provision always has to be made for accidents.

closing one's eyes and saying, "we're the government, we don't have to make it up to you" is not provision

as far as i'm concerned, dios, your argument that the government or constitution isn't required to prevent or make reparations for such things is nothing but an argument for a new government with a new constitution
posted by pyramid termite at 9:09 AM on June 8, 2007 [7 favorites]


dios, the issue seems to be that when a typo gets made and innocent people have their lives disrupted and their property damaged- and sometimes even lost their lives- the govvernment doesn't appear liable for it. If I broke into your house believing it was mine (tract housing, I guess), I'd be liable for damages. That the government is not is as sickening as your defense of it.
posted by Pope Guilty at 9:09 AM on June 8, 2007


dios: Remember, the Fourth Amendment protects you from unreasonable searches and seizures. Not all of them.

The police have some obligation to ensure their information was correct. If, in fact, the owners had changed some months previously, I would posit that they were negligent in their duty to ensure the right people were hassled and should certainly be responsible for property damage and a written apology. This is hardly too much to ask. The problem hangs on the 'reasonable' clause. I'd say if ownership had changed last week, it might be tougher call (although even then...), but months? I'm not saying multi-million dollar settlement here, just something to make sure the victim is left with a bill.
posted by Bovine Love at 9:11 AM on June 8, 2007


Err NOT left with a bill.
posted by Bovine Love at 9:12 AM on June 8, 2007


So the rhetoric here about the evil Gestapo probably should be toned down a bit.

In the SCOTUS case you describe, it was relatively mild. In many other cases, the police are violent. The whole approach is unnecessarily heavy-handed. It's shock-and-awe with your own civil population. And, again, it is, literally, Gestapo tactics. They made house raids into a science involving maximum terror, confusion, and trigger-finger violence. American SWAT forces are just following this playbook.
posted by Ethereal Bligh at 9:12 AM on June 8, 2007 [1 favorite]


Look, y'all can bitch about the evil of governmental power all day long. I'm not going to argue it with you. I am willing to discuss the case and the law. But if this is all going to be a giant rant about governmental power, then I'm not going to waste my time.
posted by dios at 9:13 AM on June 8, 2007


Look, y'all can bitch about the evil of parliament and the king all day long. I'm not going to argue it with you. I am willing to discuss the case and the law. But if this all going to be a giant rant about taxation without representation, then I'm not going to waste my time.
posted by pyramid termite at 9:17 AM on June 8, 2007 [15 favorites]


So what happens if the scrivener makes a typographical error, they bust into my house looking for a murderer, and find a bong? Since the warrant was executed in good faith, would what they find be admissable?

More importantly, what's to stop the state from just making a bunch of mistakes that "just happen" to target people the state doesn't like?
posted by TheNewWazoo at 9:22 AM on June 8, 2007


Ooooh! Ice burn!

Rock on you revolutionary all-star!
posted by dios at 9:22 AM on June 8, 2007


"My goal is to cut government in half in 25 years, to get it down to the size where we can drown it in the bathtub." -- Grover Norquist

How's that whole drowning-in-the-bathtub thing goin' for ya, Grover?
posted by blucevalo at 9:24 AM on June 8, 2007 [2 favorites]


I'm not some "police are evil" kneejerk whiner. But I think that increasingly the police are using maximum force, in all situations, where it's usually not necessary. No where is this more apparent than in the case of raids on domiciles, and especially with regard to drug crime, and most especially with regard to poor, minority neighborhoods. These days, a police deployment in even the most minor situations looks like a military action, with military weaponry and armor and tactics. I don't know how anyone with any healthy distrust for authoritarian government can watch this trend and not be alarmed by it.
posted by Ethereal Bligh at 9:25 AM on June 8, 2007 [2 favorites]



Rock on you revolutionary all-star!
posted by dios at 1:22 PM on June 8 [+] [!]


Well we already know which side of that issue you'd have been on.
posted by Space Coyote at 9:27 AM on June 8, 2007 [1 favorite]


And that piggybacking onto regulatory inspections so as to not need a warrant...that's a very spooky trend. I can't imagine how the court will uphold the constitutionality of this if it's challenged, especially if it's shown to be a common practice and where the police otherwise would have had difficulty obtaining the warrant.
posted by Ethereal Bligh at 9:27 AM on June 8, 2007


"Police make mistakes. That is not always a violation of your constitutional rights if there is a scrivner's error on the warrant. In an imperfect world with imperfect information, provision always has to be made for accidents."

That's right, a provision such as the police paying for any damage they make operating under a false premise.

What happens if a wrecking company trashes your house when they were supposed to demolish the one next door? You can sue! Civil suits are how such things are equalized under our justice system.

If the police do similarly you generally can't sue.

"I see them not wanting to open the floodgates to people suing the police for getting searched, but surely there is some duty on the part of the police to do due diligence (say that drunk...)"

What's wrong with being able to sue the police?

Are the police not citizens like you and me who are employed by the people to enforce the laws of our nation and maintain a modicum of safety in our streets?

A lawsuit symbolizes no insult to the police individually or as a group (though it may be taken as one) but merely a way to correct an inequity for which the police did not offer suitable recompense under their own volition.
posted by Matt Oneiros at 9:28 AM on June 8, 2007


Remember, the Fourth Amendment protects you from unreasonable searches and seizures. Not all of them.

I'd say that knocking in the front door because you can't keep the address straight is pretty damn unreasonable.

Compare and contrast to a government organization with a bad reputation - the FDA. If I do a release test (one of many) on a lot of drug I have to sign a chain of custody form, record what I do, the instrument information (model number, serial number, date of last calibration, due date of next calibration), the information on every chemical I use (manufacturer, lot number, reciept date, opening date, expiry date). It has to then be read and my calculations checked and witnessed by someone else. Then my corporate masters are supposed to archive my data for something like 99 years.

Of course there is a very small chance that the assay I could do might reveal a serious issue with the drug lot, which could be a matter of life and death. The police are only a bunch of guys with guns. What could go wrong.
posted by Kid Charlemagne at 9:30 AM on June 8, 2007 [1 favorite]


I don't believe that in most cases the government is "evil". I do believe that it's a collective of people, processes, and laws that has grown for some time, and will continue to do so in the future. And more than likely, it will do so in a way that's not 100% in line with what the goals were at inception. Perhaps not even 50%. But at each step of the way, the government as a whole and the individual people that make it up will feel they are doing what is necessary to keep things moving productively.

I think of it as an organism that we imported to try and solve another problem, and it ate and grew out of our control. Now it's a threat, though perhaps not an overt one. Why? Because it no longer sees us as the reason for its existence, but rather a risk to be managed.
posted by SaintCynr at 9:37 AM on June 8, 2007 [1 favorite]


Are any of you even bothering to read the article or dios' point? The case is specifically about whether these people have standing to sue the police under a certain rule, and the Court said they didn't. The Court did not say that no one may ever sue the police ever, or that police can do anything they want, etc.

Many people here are being willfully ignorant. If you believe that the victims should be compensated by the police and some reimbursement mechanism set up, that is a local matter, and outside of the Court's purview. If you argue that the police should better check their facts first, that is also a local issue. Perhaps the city or state could increase police oversight rules or something.

In any case, this isn't a Consitutional matter, if you read the facts of the case. dios is right, it would help a lot instead of screaming about what you already have decided is the case.
posted by Sangermaine at 9:44 AM on June 8, 2007


understand that the court has a specific function of interpreting the law, and not creating it.

mister dios, if you don't think our supreme court frequently creates new law, all i can say is that you're not the sharpest tool in here.
posted by bruce at 9:45 AM on June 8, 2007


But I think that increasingly the police are using maximum force, in all situations, where it's usually not necessary. No where is this more apparent than in the case of raids on domiciles, and especially with regard to drug crime, and most especially with regard to poor, minority neighborhoods. These days, a police deployment in even the most minor situations looks like a military action, with military weaponry and armor and tactics.
posted by Ethereal Bligh at 11:25 AM on June 8


I don't have the statistics on it, so I don't know if the number of raids or use of force is increasing. I would agree that it looks like they are more forceful with their swat gear. But I imagine that is a function of technology more than anything else. At some point police ceased carrying flint rifles and started carrying handguns or wearing bulletproof vests. I'm sure that looked that way too. Regardless, I'm not sure the tactics and gear themselves are constitutionally troubling. If it is the case that lethal force has upticked, then that is constitutionally troubling. Luckily there are redresses in the courts for when violence is excessive. But kicking a door down and charging through vs. battering it down and doing a military sweep is not something there is a constitutional distinction between.

Well we already know which side of that issue you'd have been on.
posted by Space Coyote at 11:27 AM on June 8


Yeah, I'm on the Constitution's side. Guilty as charged. But nice attempt at ad hominem.

Because it no longer sees us as the reason for its existence, but rather a risk to be managed.
posted by SaintCynr at 11:37 AM on June 8


That's such an odd way of looking at it. You are the government. You vote. The government is whatever you make of it. People can get elected tomorrow to decriminalize all drugs if you and enough other people want it to do so. You could elect people tomorrow who amend the constitution to prevent all searches and seizures. The law is a reflection of the will of the people. Government and the law does not exist outside of your consent.

If you don't like things, you can change it. Go forth and convince others of why you option is preferable.
posted by dios at 9:48 AM on June 8, 2007


mister dios, if you don't think our supreme court frequently creates new law, all i can say is that you're not the sharpest tool in here.
posted by bruce at 11:45 AM on June 8


Heh. You just called me stupid. Here's a novel concept which you might have overlooked at times: though someone may do something, it does not follow that they are supposed to or authorized to do that thing.
posted by dios at 9:51 AM on June 8, 2007


mister dios, if you don't think our supreme court frequently creates new law, all i can say is that you're not the sharpest tool in here.

Laws are "created" by our legislative (Congress) and our executive branches. Our judicial branch, which includes the Supreme Court, does not "create" laws, but interprets the applicability and Constitutionality of those created by the former two branches.
posted by ericb at 9:54 AM on June 8, 2007


At some point police ceased carrying flint rifles and started carrying handguns or wearing bulletproof vests. I'm sure that looked that way too.

Kicking in doors and refusing to be liable for mistakes isn't new technology.

Yeah, I'm on the Constitution's side. Guilty as charged. But nice attempt at ad hominem.

If you miss points like this in court, remind me never to hire you as a defense attourney. I'm afraid I'd get the chair for jaywalking.

The law is a reflection of the will of the people. Government and the law does not exist outside of your consent.

I guess believing that is essential to being a lawyer and not becoming an alchoholic or something, isn't it?
posted by Pope Guilty at 9:54 AM on June 8, 2007


What is the operating definition of seizure in American jurisprudence? Is there anywhere a clear definition of "seizure" that would, say, distinguish between the actual removal of things of value, and the mere destruction of things of value?
posted by little miss manners at 9:57 AM on June 8, 2007


Some people: This sucks and is obviously not just in a perfect world.

lawyer guy: so what, this is the letter of the law.

people: the law is stupid

lawyer: you're stupid

people: eat shit

lawyer: show me how


...and so forth. Happy Friday.
posted by Burhanistan at 9:57 AM on June 8, 2007 [11 favorites]


But kicking a door down and charging through vs. battering it down and doing a military sweep is not something there is a constitutional distinction between.

I'm not making the case that there are constitutional issues involved in my objections. I'd be pleased if there were ("unreasonable search and seizure"), but I'm more concerned with it as a matter of public policy, the administration of local police forces, and our evolving cultural values with regard to the role that the police is playing in our society.

I respect your opinion that the police aren't more authoritarian and violent and militaristic today than in the past, but I disagree. I, of course, think that during large portions of US history the police were in relative terms just as or more violent than today. After all, as I'm sure you realize (or do you?), almost all of the civil liberties protected by the Bill of Rights were regularly violated until the twentieth century.

My concern is that we've been in a worsening trend in this roughly since the "war on drugs" began and it's a definite increase in police authoritarianism and violence since the low-water mark sometime in the second-half of the twentieth century.
posted by Ethereal Bligh at 9:59 AM on June 8, 2007


The law is a reflection of the will of the people.

If that was true, we wouldn't need lawyers.
posted by PsychoKick at 10:00 AM on June 8, 2007 [4 favorites]


Why is this not a taking of the plaintiff's property? Though temporary, it strikes me as a taking. As such, it would entitle the plaintiffs to some form of monetary compensation.
posted by flarbuse at 10:04 AM on June 8, 2007


I respect your opinion that the police aren't more authoritarian and violent and militaristic today than in the past, but I disagree.

Just for clarification: I didn't assert that. I said I don't know that it is the case. It may very well be. I just don't have the information or know how to judge that.

After all, as I'm sure you realize (or do you?), almost all of the civil liberties protected by the Bill of Rights were regularly violated until the twentieth century.


I'm sure you have something particular in mind. But I'm not sure I can say that "almost all" civil liberties were "regularly violated" in general, mainly because I don't know how you are defining the term "civil liberty"--a term that has varied understandings among people. Certainly there are contemptible actions in the past regarding racial and sexual equality. But I'm not sure that the right to assembly has been "regularly violated." Or that "free speech" has been violated in constitutionally impermissible ways.
____________

For the sake of the site and the thread, can the people who apparently want to contibute little else other than insulting me try to abstain, please? Thanks.
posted by dios at 10:09 AM on June 8, 2007


Why is this not a taking of the plaintiff's property? Though temporary, it strikes me as a taking. As such, it would entitle the plaintiffs to some form of monetary compensation.
posted by flarbuse at 12:04 PM on June 8


The government left after 15 minutes. There is no "taking" that is as temporary as 15 minutes. Now if they did this every day for a year, you might be on to something.
posted by dios at 10:11 AM on June 8, 2007


"What is the operating definition of seizure in American jurisprudence? Is there anywhere a clear definition of "seizure" that would, say, distinguish between the actual removal of things of value, and the mere destruction of things of value?"

I seem to recall reading recently about some landowners who were placed in the position of not being able to use their land for anything due to the government's refusal to clean up some toxic material that had been left there since WWII, and their lawsuit was basically arguing a similar position - their land wasn't necessarily seized, but it was rendered useless to them through government intervention (or non-intervention, depending on which era of government is being discussed). That seems to be something of a parallel discussion, to me anyway.
posted by mr_crash_davis at 10:13 AM on June 8, 2007


"The law is a reflection of the will of the people.

If that was true, we wouldn't need lawyers."


Like we need lawyers.
posted by mr_crash_davis at 10:13 AM on June 8, 2007


Quoth Dios:

>>That's such an odd way of looking at it. You are the government. You vote. The government is whatever you make of it. People can get elected tomorrow to decriminalize all drugs if you and enough other people want it to do so. You could elect people tomorrow who amend the constitution to prevent all searches and seizures. The law is a reflection of the will of the people. Government and the law does not exist outside of your consent.


It's a shame that I can't just get everyone together, then. I wish I'd known all along that it's just my lack of effort, not the disparate actions, thoughts, experiences, and agendas of millions of individuals, that are keeping us from being as free and happy as we could be.
posted by SaintCynr at 10:17 AM on June 8, 2007


I seem to recall reading recently about some landowners who were placed in the position of not being able to use their land for anything due to the government's refusal to clean up some toxic material that had been left there since WWII, and their lawsuit was basically arguing a similar position - their land wasn't necessarily seized, but it was rendered useless to them through government intervention (or non-intervention, depending on which era of government is being discussed). That seems to be something of a parallel discussion, to me anyway.
posted by mr_crash_davis at 12:13 PM on June 8


That sounds like what is called a CERCLA action, which is a provision in the US Code that Congress established a process and funds to compensate people whose property was destroyed by toxic activities of the federal government. I think I did a crossword puzzle during environmental law, so I can't give you any more than that. As a constitutional matter, "seizure" of land would a constructive taking under the Takings clause and entitled to just compensation. A party can assert whats called a Bivens claim for compensation if they believe an unjust seizure has occurred.
posted by dios at 10:21 AM on June 8, 2007


There is no "taking" that is as temporary as 15 minutes.

You may very well be right. I don't know. I have never researched that issue. Has there been a Supreme Court decision where the Court said that yes, there was technically a taking, but that it was not long enough to qualify as a taking under the law? If there has been, then how long was that taking for? If there has not been, then why wouldn't that be a reasonable argument to make?
posted by flarbuse at 10:21 AM on June 8, 2007


My dad tried to sell me this thing recently that's a tripwire attached to a chamber that holds a blank shotgun shell, which fires when tripped to alert you of trespassers-- as well as temproarily deafening them and making them crap their pants. I think they'd make charming stocking stuffers this year.
posted by hermitosis at 10:25 AM on June 8, 2007


It's a shame that I can't just get everyone together, then. I wish I'd known all along that it's just my lack of effort, not the disparate actions, thoughts, experiences, and agendas of millions of individuals, that are keeping us from being as free and happy as we could be.
posted by SaintCynr at 12:17 PM on June 8


Well, that is the government you live in. So, if you can't get enough people to agree with your thinking, then it isn't a problem with the functioning of the system. If your needs for happiness are limited and not something supported by majority (or plurality) of the people, then you are SOL. Feel free to find another form of government responsive to your needs. But
posted by dios at 10:25 AM on June 8, 2007


This reminds me of the Kathryn Johnston thread... the 92 year old Atlanta lady that was killed by cops after she shot at them for the No Knock Entry. I read recently that the Atlanta PD now admits she was NOT a drug dealer and they fucked up. But becuase she shot at them they feel they don't own her family shit.

Shit like this happening in era of Patriot Acts scares the shit out of me.
posted by tkchrist at 10:26 AM on June 8, 2007 [1 favorite]


My concern is that we've been in a worsening trend in this roughly since the "war on drugs" began and it's a definite increase in police authoritarianism and violence since the low-water mark sometime in the second-half of the twentieth century.

In this case, the law is a reflection of the will of the people in your house, holding automatic weapons at you and your family. Democracy in action.
posted by Blazecock Pileon at 10:29 AM on June 8, 2007


These people were taken to a dungeon and waterboarded. The whole thing lasted 15 minutes. No beatings. No car batteries on the nipples. So the rhetoric here about the evil Gestapo probably should be toned down a bit.

I'm assuming there's a dropped modifier in there, dios.

But, more importantly, I really get the impression that law enforcement agencies at all levels are using exactly this kind of ass-backward reasoning to get away with unconscionably horrible acts. The bar's been established for how evil law enforcement could be (and said bar continues to ascend, as federal agencies discover that hey, SCOTUS is willing to sanction open disregard for habeus corpus, and hey, there's not actually any international authority that can swat us for disregarding the Geneva Convention!), so there's some noticeable creep in the quotidienne evil of local agencies. It's like they realize that there's only so much outrage that normal people are capable of mustering, and as long as it's directed at Gitmo, well, then, the Atlanta PD can probably take out Grandma in a botched drug raid, and the ACLU might let it slide because their resources are already stretched pretty thin protecting citizens from war crimes! And hey, keep a stiff upper lip, citizen, because at least we didn't drag her to the illegal offshore detention camps!

Unbelievable. The hubris at every level of a mess this size, from the officer who doesn't bother to read the warrant, to the local department that doesn't bother launching a proper internal investigation, to the judicial oversight that's happy just staring the other way while whistling a happy tune. I realize that it just sounds frantic when you start drawing freewheeling comparisons between ordinary law enforcement tactics and the SS, but are you seriously saying that you can defend the actions of anyone implicated here as honorable? Or even defensible? It's anathema to the 4th Amendment, and arguing that the solution shouldn't come from a federal level is just passing the buck.
posted by Mayor West at 10:30 AM on June 8, 2007 [4 favorites]


Has there been a Supreme Court decision where the Court said that yes, there was technically a taking, but that it was not long enough to qualify as a taking under the law? If there has been, then how long was that taking for? If there has not been, then why wouldn't that be a reasonable argument to make?
posted by flarbuse at 12:21 PM on June 8


There is no bright line. The question in that regard is whether the activity is of such a sustained nature that property value has diminished. The case you should read about is United States v. Causby. In that case, the government was flying over his house. Granted the interference was temporary on each instance, but it occurred over a sustained period of time and with such regularity that it effected his property value to the point it was a "taking." Now, back to this isolated one time incident. You are going to have a hard time proving a one time, 15 minute incursion was a Constitutional taking.
posted by dios at 10:30 AM on June 8, 2007


My dad tried to sell me this thing recently that's a tripwire attached to a chamber that holds a blank shotgun shell, which fires when tripped to alert you of trespassers-- as well as temproarily deafening them and making them crap their pants. I think they'd make charming stocking stuffers this year.
posted by hermitosis at 12:25 PM on June 8


That's the Katko v. Briney case, a first year law staple. But I'm betting you knew that.
posted by dios at 10:33 AM on June 8, 2007


Hmm, what would the charges be if private individuals had done the exact same thing the cops had:

- Destruction of Property
- Assault with a Deadly Weapon
- Kidnapping...

Heck, they'd be looking at 10+ years. But, instead, they're cops, so OOPSIE!!
posted by LordSludge at 10:33 AM on June 8, 2007


Heck, they'd be looking at 10+ years. But, instead, they're cops, so OOPSIE!!
posted by LordSludge at 12:33 PM on June 8


Really? That's the point you are going to make? That the government can do things that citizens can't?
posted by dios at 10:35 AM on June 8, 2007




Negligent Infliction of Emotional Distress!

(My favorite tort EVAH!)
posted by anotherpanacea at 10:41 AM on June 8, 2007


dios -- I think that I am trying to suggest something that might be possible, and you are suggesting your opinion on how that issue might be resolved. Again, I am not saying you would not be ultimately right.

But in the case in this fpp, the Supreme Court said that the plaintiff does not have standing. The plaintiff never gets to have a jury hear the issue. Would the plaintiff not have standing to make the taking argument? And, if so, then a jury could decide whether they thought that the goverment's actions were enough to constitute a taking under the law and come up with an amount of compensation. You may very well be correct that a government lawyer would not have too much trouble convincing a jury that there was no taking, but do you think that the plaintiff would not have standing to get to a jury in the first place?
posted by flarbuse at 10:44 AM on June 8, 2007


No, I take that back. Intentional IED is my favorite tort. NIED is like fifth.
posted by anotherpanacea at 10:44 AM on June 8, 2007


For those who are wondering, Alienation of Affection is second.
posted by anotherpanacea at 10:46 AM on June 8, 2007


For similar reason, I'm a big fan of trespass to chattels, loss of consortium, and ultrahazardous activities. Hopefully, all at the same time.
posted by anotherpanacea at 10:51 AM on June 8, 2007




Quoth Dios:

>>If your needs for happiness are limited and not something supported by majority (or plurality) of the people, then you are SOL. Feel free to find another form of government responsive to your needs.


I certainly hope that every action of the government continues to meet your needs, and that you never have to join those of us that are "SOL", as you so succinctly put it. If such a tragedy does occur, I hope that you are able to use our responsive and caring government to address your grievances quickly. If the government does not do as you desire, I hope it is extremely clear to each and every person, or rather, a "plurality" that there has been a miscarriage of justice, so that you may change the government quickly should it fail to act rightly. I hope you are never victimized by any injustice you might perceive at the hands of others who have "plurality" over you.
posted by SaintCynr at 10:55 AM on June 8, 2007


But in the case in this fpp, the Supreme Court said that the plaintiff does not have standing. The plaintiff never gets to have a jury hear the issue. Would the plaintiff not have standing to make the taking argument?
posted by flarbuse at 12:44 PM on June 8


That's not actually what occurred or what the opinion stated. In this instance, the trial court granted summary judgment which says as a matter of law "even if all you, Mr. Plaintiff, said is true, you still lose." The Court of Appeals reversed on the grounds that summary judgment was not proper because a fact question existed as to immunity grounds, and the Supreme Court reversed the Court of Appeals and said there was no fact question and that the trial court was correct as a matter of law.

In other words, the Plaintiff was able to bring the case. They just couldn't prove it. If your question is whether they could bring a case under the "takings" clause, the answer is (as it usually is when the question is 'can I sue for...') yes. Of course they can file that suit. But they still won't get to the jury because the case would be dismissed under FRCP 12(b)(6) for failure to state a claim upon which relief can be granted for the reasons I stated above. Given the facts, there really isn't anything they could have asserted that would have likely made it to a jury.
posted by dios at 10:57 AM on June 8, 2007


loss of consortium
posted by anotherpanacea at 12:51 PM on June 8


FYI, loss of consortium isn't a tort. It's a claim for damages.
posted by dios at 10:58 AM on June 8, 2007


I'm sure you have something particular in mind. But I'm not sure I can say that ‘almost all’ civil liberties were ‘regularly violated’ in general, mainly because I don't know how you are defining the term ‘civil liberty’--a term that has varied understandings among people. Certainly there are contemptible actions in the past regarding racial and sexual equality. But I'm not sure that the right to assembly has been ‘regularly violated.’ Or that ‘free speech’ has been violated in constitutionally impermissible ways.

Not particular, all-encompassing. I am defining "civil liberty" as anything protected by the Constitution, mostly what's in the Bill of Rights, contemporary for the police/government actions at any point in the history of the US. All of the Bill of Rights were routinely violated on a widespread basis until the twentieth century. Rarely were there ever any court challenges made against these violations; and when there were, rarely were cases decided against the government; and when there were, rarely did the appellate courts uphold those decisions; and when they did, rarely did SCOTUS reverse them.

This was widely written about during the recent celebration of the anniversary (or whatever the correct term is) of the Bill of Rights—though, given the subject matter and how strongly it contradicts conventional wisdom, these articles weren't widely read. There were a number of law review articles on this.

It's really quite shocking and eye-opening. There were a large number of regular 1st Amendment violations of protection of speech, especially (IIRC) in the first fifty years of the union, violations of the taking clause, of search and seizure, of quartering the military, all of them. It was business as usual and no one made a peep about it. This was partly because the applicability of the Bill of Rights was long seen to be as narrowly recognized as could be imagined: only to direct actions of the federal government, and even then there was usually a rationalization for why a protection didn't actually apply. Or, these protections were simply ignored. Essentially, for most of the US's history, most people didn't have any practical protection of the civil liberties enumerated in the Bill of Rights.

I'm sure you won't believe this or take my word for it. Most people don't. I urge you to research this.

This isn't a partisan political assertion. In the context of this thread, I'm using it as part of a lefty argument. At the time of the BoR celebration when I first learned about this, I used it to argue against lefties who believed that we were in an era of lowest respect for civil liberties and a respect for the Bill of Rights and that, with regard to the Bill of Rights, we were going to hell in a handbasket today contrasted against a supposed long history of the government respecting the BoR. This isn't true—today at every practical legal level, citizens enjoy actual protection of their rights as enumerated in the BoR like citizens never did for most of the history of the US.

I'd just like to keep things that way. This present administration isn't promising in that regard.
posted by Ethereal Bligh at 10:59 AM on June 8, 2007 [1 favorite]


Like we need lawyers.

I wasn't being snarky. Government's just another faction, another organization. Like all organizations, there's nothing inherently accessible about it to the common man, there's nothing special about it that makes it any more the "will of the people" than any other large organization. Due to that barrier, any influential organization will end up with specialists and experts who deal with studying and manipulating said organization's influence and workings. For the organization of government, one group of specialists are called "lawyers".

Because the law is not a reflection of the will of the people, and because people want to overcome that disconnect, we have lawyers.
posted by PsychoKick at 11:02 AM on June 8, 2007


The law is a reflection of the will of the people.

it is plainly not the will of the people that innocent civilians have their personal property destroyed by police who are at the wrong address
posted by pyramid termite at 11:03 AM on June 8, 2007


I can't agree with the characterization by some here that these decried police tactics are evil. They might be ill-advised. They might be disproportionate responses. But I doubt that most of the police involved are mustache-twirling villains, avid readers of Mein Kampf, and virgin-sacrificing minions of Satan.
posted by Midnight Creeper at 11:04 AM on June 8, 2007


Oh shit... I was wondering why there seemed to be two terms for the same thing. I'm not a lawyer, I'm a philosopher. I'm just in here making fun of abstruse legal terminology.

Though I guess I'd like to know why these people would recover using this deprivation of civil rights argument when they could just use regular torts....
posted by anotherpanacea at 11:04 AM on June 8, 2007


I wish people would quit engaging with dios when it's clear he's pitbulled on a solitary point. Much better to leave him clinging to it while exploring the aspects he's not interested in.

Our government is not the product of the people's will, at this point. On a local level, it's more democratic, but still not perfectly. Each iteration upward into the hierarchy reveals less by-the-people/for-the-people than the level below it. Election fraud is not just for paranoid thriller novels anymore.

That said, "the people" are lazy, thoughtless, venal creatures for the most part. They are used to being fed information in as pre-digested a form as they can get, and they are full of hopeless rage and impotent hope. We can get them together for brief forays into decency and accountability, but keeping them focused takes truly superhuman effort.

The American People do not understand the implications of precedent set by bad laws until their own grannies are being shot for defending their own property. At the point of understanding, they throw up their hands and cry at the unfairness of it all, not really seeing the connection between laws enacted 20 years ago to poorly address a rampant complication in civil order.

There are those who do see how corrupted things have become and want to make changes, but there is a lack of self-discipline, willingness to sacrifice, and cohesiveness. More relevantly, most of us at this point are so overwhelmed with keeping our own personal lives running, the erosion of our beloved democracy is a distant runner-up in priorities.

Many people believe there will be a tipping point, a clear signal that they should drop everything and get involved. That may be true, but it'll be too late then for anything but the most extreme response. We can spend as much time as we like being alternately horrified and disgusted by our own government, but until we employ our focus, energy, and discipline on making things right, this is the world we get.

It's not fair that we should have to do extra work to undo the damaged caused by ego, greed, and power-tripping, but life isn't fair.

So, yes, in a way dios is right - we get the government we have the energy for. If a puppy starts crapping the floor and you don't address it immediately, you'll end up with a full-size dog crapping on the floor, and that's a lot harder to solve. It's still our responsibility to wrestle the mutt into a leash to do its business where its supposed to do it.
posted by batmonkey at 11:12 AM on June 8, 2007 [11 favorites]


There seems to be a lot of unknowns of what lines exactly need to be crossed before something legitimately objectionable happens.

What time frame between the legal transfer of property before it becomes reasonable to expect the police to know that it is likely the previous owners no longer reside there? What would constitute due diligence in establishing this? How long can a person be held when it is known they are not the ones sought by the warrant? Could they have been arrested on an unrelated charge if direct evidence had been spotted in the execution of this warrant?

I don't know the answers, but feel the police screwed up in the first instance, and should be held culpable for property damage. The :15 hold time seems almost ok.

I can not help but be more than a little concerned, in general, about such a mistake happening. I live with someone who suffers from PTSD. Heavy handed military-esq tactics would be pretty damn traumatic, even if it was only :15.
posted by edgeways at 11:13 AM on June 8, 2007


There were a large number of regular 1st Amendment violations of protection of speech, especially (IIRC) in the first fifty years of the union, violations of the taking clause, of search and seizure, of quartering the military, all of them.

I figured this is where you were going, and I'm aware of the argument. I will suggest this, that a lot of those arguments come down to how you define the underlying civil liberty or right. In other words, if you define expansively, then yes, you can find numerous instances which it is broached. If it is defined narrowly, then perhaps less. The key to the Supreme Court's jurisprudence is to define rights not narrowly or broadly but neutrally. Neutrally defined, neutrally derived, neutrally applied.

There is certainly a depressingly long list of past actions which were abhorrent. There is also list of poor and enabling opinions of Courts. Some people see more than others depending on how they define the right. I'm not bring flippant about this, but take the issue of search and seizure. One could take the position (and there are those absolutists who do) that the plain view doctrine is constitutionally questionable as applied. Thus they may think that a cop who glances into your back seat after pulling you over for speeding is violating the Fourth Amendment. Other may disagree and find that is not a search or seizure. So in other words, one can find violations depending on how one defines the terms.

I think you are right that from a purely legal manner, the march of individual rights has been consistent. Citizens have more and stronger protections of rights now then they ever did. There are cyclical micro re-adjustments, but in the macro, individual liberty has consistently tended towards maximization.
posted by dios at 11:14 AM on June 8, 2007


it's. dangit. it's. why did i not see that in preview?!? argh.
posted by batmonkey at 11:15 AM on June 8, 2007


I doubt that most of the police involved are mustache-twirling villains, avid readers of Mein Kampf, and virgin-sacrificing minions of Satan.

I should probably accept the definition of evil given by someone named Midnight Creeper, but I think it's too limited. I have been reluctant to use the word in the past, but the actions of a certain Vice-President and his friends have convinced me that there is evil in the world. My definition is something like: actions intentionally taken in self-interest, with seriously bad results for other people, and no regard for those results by the actor. No-knock raids on the wrong house can meet my definition.
posted by Kirth Gerson at 11:16 AM on June 8, 2007


I can't agree with the characterization by some here that these decried police tactics are evil. They might be ill-advised. They might be disproportionate responses. But I doubt that most of the police involved are mustache-twirling villains, avid readers of Mein Kampf, and virgin-sacrificing minions of Satan.

First off, evil is banal. Normal. Even a little bit boring. There's nothing exciting about it, except when it finally gets around to breaking something or someone. If evil was exciting, it would be easily found and removed before doing any damage. (That's probably why evil tends to be so hyped-up, otherwise no-one would ever get off the couch and do something about it.)

Second, "ill-advised" and "disproportionate" are hallmarks of incompetance. And quite frankly, sufficiently advanced incompetance is indistinguishable from evil. Doubly so when in positions of great responsibility. It's why we have such a concept like criminal negligence.
posted by PsychoKick at 11:17 AM on June 8, 2007 [2 favorites]


Though I guess I'd like to know why these people would recover using this deprivation of civil rights argument when they could just use regular torts....
posted by anotherpanacea at 1:04 PM on June 8


Because you can't sue the federal government for regular torts. The government is immune from suit except in limited circumstances. You have to bring suit under 42 USC 1983 (civil rights claim), the Federal Tort Claims Act (which authorizes some tort action against the government), or one of the other specific waivers of immunity passed by the congress. Unless the government has waived immunity over a particular claim, then the government is immune. There are small forests that have been cleared discussing the history and purposes of sovereign immunity. But that is the answer to your question.
posted by dios at 11:18 AM on June 8, 2007


I think you are right that from a purely legal manner, the march of individual rights has been consistent. Citizens have more and stronger protections of rights now then they ever did. There are cyclical micro re-adjustments, but in the macro, individual liberty has consistently tended towards maximization.

Huh? I'm mighty suspicious of progress narratives, and this kind of claim about the growth of individual liberty strikes me as a little too utopian. It may be that more freedoms have been spelled out by judges in favor of the individual against the rest of the state than ever before, but more restrictions have been spelled out, too. The abstract individual has lost as many liberties to discriminate, contract, and dispose of his property as he's gained fine distinctions in the freedom from searches and seizures determined to be unreasonable.

I'm not sure that's a bad thing. I can't legally sell myself into indentured servitude or sell my services for less than the minimum wage, though, and in the abstract sense you're discussing, that seems like a loss of liberty defined as freedom from state interference, even as it's a gain for egalitarians and freedom understood as non-domination.

Unless the government has waived immunity over a particular claim, then the government is immune.

Hmm... can Congress wave immunity for the states, or do they have to do that themselves?
posted by anotherpanacea at 11:25 AM on June 8, 2007


I can't agree with the characterization by some here that these decried police tactics are evil. They might be ill-advised. They might be disproportionate responses. But I doubt that most of the police involved are mustache-twirling villains, avid readers of Mein Kampf, and virgin-sacrificing minions of Satan.

You don't need to be any of those things to commit evil acts. A widespread egregiously unnecessary use of extreme violence and terror to investigate and enforce laws against non-violent crimes, in the neighborhoods of the most impoverished and disenfranchised, causing innocent deaths and injury, with little recourse for the victims of these tactics—along with the militarization of the police—increases the amount of evil in the world, whether or not any one individual involved could fairly be characterized as an evil person. I've read more than a few accounts of police acting with evident cruetly and viciousness. That most of these folks are otherwise everyday people who are nice to their families and dogs and neighbors doesn't diminish the evil acts they've committed. I'm a good person, I believe, yet I've committed a few evil acts in my life. I'm responsible for them.

Liberals are afraid of the words good and evil these days while many conservatives use them recklessly. That's very unfortunate in both cases. From the President challenging Iraqi insurgents to "Bring it on!" to score a few more poll points for "toughness" to people who murder abortion doctors to Fred Phelps inviting homophobic violence...this is all evil and leftists should be willing to say so. You don't need some sky god to justify the idea of evil—we all know it exists in some sense or another, we recognize it when we see it in person or in fiction or in our imaginations. The belief that there's a lack of an absolutist moral foundational set of principles doesn't mean that any leftist, anywhere, decides that he or she cannot condemn the rape and murder of a child, for example. We believe in right and wrong, we know there are evil people and evil acts. We don't need the existence of a Satan to validate the concept. We need to return the most direct words of powerful moral condemnation to our vocabulary...because our opponents are taking advantage of the fact that we will not use this language.
posted by Ethereal Bligh at 11:32 AM on June 8, 2007 [2 favorites]


Our government is not the product of the people's will, at this point

and this is the nut of the issue. Earlier SCOTUS sea-change Constitutional decisions like Brown and Roe were justifiable because the present loss of liberty was too significant to wait for the wheels of government to spin up, even if they could.

WRT this case, the degree of generosity we have towards making people whole after government screw-ups is a legislative issue, not a Constitutional one.
posted by Heywood Mogroot at 11:37 AM on June 8, 2007


challenging Iraqi insurgents to "Bring it on!"

nitpick: "I say bring 'em on . . ."
posted by Heywood Mogroot at 11:39 AM on June 8, 2007


NO ACTUAL HARD FEELINGS PsychoKick - I actually fully agree with you and think what you said was well stated...which is why I restated it purely for example. My genuine apologies if this caused you personally any discomfort, but I think it generally illustrates well the impact of these kinds of events have on the local psyche.

Death by violence accidental or not is, as you aptly point out, indiscernible from a violent death caused by design - most particularly in instances where there is no redress.
/Certainly I’d owe PsychoKick an apology if I had posted such a response incorrectly - and indeed, I feel one is owed for the imposition of the example.
What then do the police owe the populace they serve when an error is made? Nothing? And indeed, what does this say about the presumption of innocence even when the correct address is on the warrant?


(Hopefully you will forgive my having singled you out in such a manner, but I thought that would have been mitigated by my immediate “wrong thread” post...unfortuanately Ethereal Bligh and I posted nearly simultaneously and split the posts. So my apologies for that error as well as the (albeit illusory) acrimony. And hopefully the caps in this comment gained your attention and limited any hard feelings as well.)
posted by Smedleyman at 11:47 AM on June 8, 2007 [1 favorite]


EB- What good does the rhetoric of evil do? Why not focus on solutions? "How can we arrest the para-militarization of American law enforcement?" seems a better question than "Is evil the right word to describe this situation?"

Entry teams aren't really the moral agents here. They get up every day and knock down five doors before most people have breakfast, because that's what their departments pay them to do. There are apartments in NYC where drug dealers are up all night armed with heavy weaponry, and when an entry team knocks down one of those doors, they need to move quickly and forcefully to prevent major fatalities on both sides. There are not, however, five such heavily armed apartments for every day these entry teams go to work. They use the same tactics on regular folks because we're all convinced that police officer safety is worth any price or disruption. They do it to practice, and so as not to get sloppy.

Are you prepared to comfort the spouses of accidentally killed officers two or three times a year in order to save thousands of households a brutal, but ultimately safe, entry? Are you willing to take on the unions when they protest the working conditions their officers face, the risks and dangers? If so, maybe you'd make a good mayor. But maybe your constituents would vote you out as soft on crime, too. Especially if you called law enforcement 'evil.'
posted by anotherpanacea at 11:50 AM on June 8, 2007


People can get elected tomorrow to decriminalize all drugs if you and enough other people want it to do so. You could elect people tomorrow who amend the constitution to prevent all searches and seizures.

I guess I'll see you in the voting booth tomorrow then? Didn't know we had elections every day.
posted by quarter waters and a bag of chips at 11:51 AM on June 8, 2007


Are you prepared to comfort the spouses of accidentally killed officers two or three times a year in order to save thousands of households a brutal, but ultimately safe, entry?

Yep. As unpleasant as it may be for them, law enforcement must pay the price for remaining on the side of protecting citizens as the priority over protecting law enforcement. Otherwise, we live in a police state.

Use of terrifying, overwhelming force is not, I argue, effective in protecting law enforcement in the long run, anyway. Criminals have access to a large range of deadly weaponry and we've seen that both sides are willing to escalate and have the means to do so. And even if staying a step ahead of criminals in the use of heavy weaponry (and the willingness to use it) results in great relative safety for law enforcement, it dramatically diminishes the safety of nearby innocents.

Most other western democracies don't feel the need to use paramilitary units and tactics for routine searches and arrests. If those who worry about the safety of law enforcement don't believe that a reduction of overwhelming force is feasible in the US without incurring law enforcement deaths greatly in excess to what we see in these other western democracies, then I say that perhaps they ought to look at some of the other factors that make the situation in the US more deadly and reduce and eliminate those factors rather than progressively turning the US into a violent police state.
posted by Ethereal Bligh at 12:04 PM on June 8, 2007


...smed... breakin the fourth wall, man. some of us are enjoying this. *munches popcorn*
posted by Baby_Balrog at 12:06 PM on June 8, 2007


it is plainly not the will of the people that innocent civilians have their personal property destroyed by police who are at the wrong address

That's plainly not the will of the victims of the invasion, but "The People" at large desire an actively deterrent police system with reasonable (and unavoidable) levels of human error. This incident being a subset of that, it most certainly is "the will of the people."
posted by Riki tiki at 12:06 PM on June 8, 2007


Are you prepared to comfort the spouses of accidentally killed officers two or three times a year in order to save thousands of households a brutal, but ultimately safe, entry?

I'd also be satisfied with that tradeoff, because the "ultimately safe" part is a fantasy. Cops are expected to risk their lives. When they start risking ours to protect themselves, something's wrong.
posted by Kirth Gerson at 12:09 PM on June 8, 2007 [3 favorites]


As far as the claims of the original poster: In the appeals process, the victims didn't challenge the validity of the warrant. So there goes the connection to typos or "two doors down" errors. The victims also didn't challenge the execution of the search on appeal, for example by saying that they were held for longer than was necessary or prevented from getting dressed for longer than was necessary. So there goes the Gestapo tactics connection.

If I'm reading the SCOTUS decision correctly (and IANAL nor do I have any legal training), it seems like the primary claim left unresolved was that the police should have realized it was an erroneous search simply because the people they found were the wrong race. The court (correctly, IMO) dismissed that on the basis that finding three white people in the house doesn't mean there are no black people in the house.

On the issue of whether police have inherent immunity in these sorts of cases, the main opinion was that it was irrelevant since the facts of the case absolved them even if they're not immune.

I'm okay with this decision, and I don't think it's correct to assume its precedent will subject us to unreasonable police behavior.

Someone please correct me if I've misread the decision.
posted by Riki tiki at 12:12 PM on June 8, 2007


I'm still hoping someone knowledgeable will tackle this aspect:

So what happens if the scrivener makes a typographical error, they bust into my house looking for a murderer, and find a bong? Since the warrant was executed in good faith, would what they find be admissable?

More importantly, what's to stop the state from just making a bunch of mistakes that "just happen" to target people the state doesn't like?

posted by -harlequin- at 12:25 PM on June 8, 2007


Whenever these things happen, before the issue gets to the courts there are a series of people with a chance to react.

The department wherein a clerk was in error/the department wherein cops overstepped their power. City legislatures/mayors. Even Congressmen and Senators could step in and either make the compensation de jure, or offer it without law in good faith.

I believe I recall hearing of one instance of such though I can't for the life of me remember the specifics. I have no expectation of the police taking money from their budget. However, it seems when a mistake like this is made it would be good PR for the politicians to step in and make amends. Or are they that confident in the cruelty of the populace or afraid of police retribution?

This happens with things like veterans benefits where being haggled for years by the bureaucracy a senator signs off on them. It happens occasionally with prisoners wrongly accused. But everytime there's a wrongful death reported no one higher up seems to be stepping in to offer compensation.

So by the time cases get to the courts, and they are forced to decide on the legal issues not the morality of the situation, the system has already failed.

That being said, I suppose this was hardly one of the worst cases.
posted by kigpig at 12:26 PM on June 8, 2007


You only read one link? The post wasn't just about the SCOTUS decision. Maybe My writing "this happens a lot" and "all these stories are within the last five weeks" was somehow obscure?
posted by Kirth Gerson at 12:27 PM on June 8, 2007


That was for R-t.
posted by Kirth Gerson at 12:28 PM on June 8, 2007


"Like we need lawyers.

I wasn't being snarky."


Ah, but I was.
posted by mr_crash_davis at 12:38 PM on June 8, 2007


As unpleasant as it may be for them....

I'd also be satisfied with that tradeoff....


This, of course, is the problem: we're always willing to trade the security of others for our own liberties.

I think the prevalence of this kind of entry is a big problem, and that it endangers the legitimacy of law enforcement in areas that are already stretched quite thin by cop-community tensions. But I've also seen enough funerals, with all the guy's buddies dressed in full regalia and the bagpipes playing, to wonder whether this is something that'll find an easy solution.
posted by anotherpanacea at 12:38 PM on June 8, 2007


"Are you prepared to comfort the spouses of accidentally killed officers two or three times a year in order to save thousands of households a brutal, but ultimately safe, entry?"

You can use this kind of logic to justify just about anything. Whenever I hear someone start with "if it prevents just ONE...", I suspect that they are going to make an emotional plea for a provision that will focus on the loss of one side and ignore any previously agreed on principles.

The death of a police officer in the line of duty is tragic. And yet, our culture and our government is founded on maintaining certain principles that focus on individual and property rights. This is what we are about. If the safety of public servants comes first before and all other considerations then that needs to be explicitly stated, not sneaked in when there is opportunity.

By the way, those who undergo brutal searches suffer damages too. They may not be as easy to quantify as corpses but they are also there. I'm not equating them, simply pointing to them. What is worth more than the lives of the police officers is maintaining individual rights.

For a somewhat loose analogy in national affairs, look at the 1% Doctrine. I believe there are excerpts on the web.

-*-*-*-

andywolf,

That second link is great, thank you.
posted by BigSky at 12:46 PM on June 8, 2007


Kirth Gerson: I didn't challenge that you linked a lot of cases of police error. My response was to the connection you drew to the SCOTUS case.

Your characterization of it was inaccurate, because the supreme court case didn't address typos or breaking into a home not listed on the warrant, nor excessive force or damages (nor theft) during the search. Nor did it address government organizations circumventing the constitution by pretending they're not doing police business on routine inspections.

Instead, it addressed a warrant that is validly (this does not necessarily mean correctly) issued based on probable cause.

The only one of your links where that applied was the bonner county daily bee, and that example seems like an honest error with no excessive force (the homeowner wasn't even home), and the police paid for a new door.

Also, if you're making your argument on sheer volume, you should note that two of your links are about the same incident (Washington Times and Science Daily).
posted by Riki tiki at 12:54 PM on June 8, 2007


Mr. Davis: it is a bit of a side decision, yes, but not necessarily as much as it seems. If someone is arguing that no-knock, kick-down-the-door, don't-pay-if-in-error searches are fourth amendment violations they could be arguing that such activities are either unreasonable searches or unreasonable seizures.

If the local swat boys kick my door off its hinges, ruin some furniture, and damage my reputation, I certainly have had some things "seized" from me: the utility of having a door that shuts, the full enjoyment of my furniture, and the soundness of my good name; and, just as if it I had merely had my door stolen or my furniture taken from me, I will not have that utility or enjoyment without the expenditure of resources to reobtain it.

It may of course be the case that a court would decided -- or that a court already has decided -- that such a line of thought is invalid, hence the question as to whether or not there is a clear definition of the term. If there were a clear set of axioms and principles with which one could reliably interpret the law I would of course have no need to ask, but as-is you have to ask an expert as to which of the many possible interpretations are currently favored.

As a side note, I find this too amusing not to post, and it is at least tangentially related: The Honorable Judge Bork falls down, waits a year and a day, then sues for a million dollars.
posted by little miss manners at 12:57 PM on June 8, 2007


Kirth Gerson: don't get me wrong, I thought it was a good post. I appreciate information about illegal searches and seizures. And I appreciate information about legal precedent.

I just felt compelled to point out where you and many of the commentators were drawing incorrect conclusions, in my opinion.
posted by Riki tiki at 1:01 PM on June 8, 2007


As a side note, I find this too amusing not to post, and it is at least tangentially related: The Honorable Judge Bork falls down, waits a year and a day, then sues for a million dollars.

Wow. Actual damages of over a million dollars. Sure. Right. Plus punitive, Bork wants. Because Yale Club of New York did not provide a step onto the speaking platform and Bork attempted to mount it, fell backward, bruised his leg causing a hematoma which eventually burst.

Okay, I know that there are people reading this comment that have sued after suffering similar injuries in similar situations. And I don't want to offend anyone. I'm sure that your injuries were awful and that someone else screwed up. Even so, I find reading this suit repugnant. I'd be repulsed whoever it was who was suing. That it is the ultra-conservative jurist, Robert Bork, just makes it all the worse.

There are a number of ethics and worldviews that I was raised with that I have discarded. But a disgust at litigation-happy culture with its constant shifting of blame and huge dollar judgments isn't one of them. Even were I poor (well, as I am now) and where such an injury would be life-changing—not wealthy and secure as Bork undoubtedly is—I'd still not sue after suffering such an injury.
posted by Ethereal Bligh at 1:18 PM on June 8, 2007


As a side note, I find this too amusing not to post, and it is at least tangentially related: The Honorable Judge Bork falls down, waits a year and a day, then sues for a million dollars.
posted by little miss manners at 2:57 PM on June 8


Why would anyone find it "too amusing to not post" that a person waited a year and a day before filing suit? 99% of cases are not filed in the first year from the date of injury. What's the funny part? That a former Supreme Court nominee is suing someone?
posted by dios at 1:20 PM on June 8, 2007


OK, Riki tiki, but I didn't draw any of those parallels you ascribed to me in your previous comment, except for the 'typo on the warrant' one, and I haven't seen that refuted.

I was initially just going to post about the apparent flood of wrong-house entries, when I found that SCOTUS-decision story on reason.com. I'm not a lawyer either, and the story was claiming it meant what I said in the post. I expected that someone here would correct any inaccuracy in their take on it, which is what happened. I'm glad it's not as bad as reason.com claimed. I remain concerned by the surge in no-knock entries, and by the increase in mistaken ones. the article andywolf linked to actually goes into the effects of court decisions and the history of no-knock at much more depth.
posted by Kirth Gerson at 1:25 PM on June 8, 2007


Wow. Actual damages of over a million dollars.

It said he was hospitalized and required surgery. He probably missed financial opportunities. The $1 million figure doesn't surprise me much. This is pretty standard fare across the table.

His case has certain holes in it, I will say that. I think it could be easily defensible suit.

I'd be repulsed whoever it was who was suing. That it is the ultra-conservative jurist, Robert Bork, just makes it all the worse.


I guess this is what I don't get. I am unaware of Bork being a tort reform advocate. He is a judicial conservative as that term is generally applied. But that doesn't relate to tort reform.

And Ethereal Bligh, don't look now, but you just made a case for tort reform that sounds a lot like George W. Bush.
posted by dios at 1:28 PM on June 8, 2007


I'm a firm believer that everyone should have a near death experience (full-blown, mind you...floating above the inanimate body, lights, panoramic life review, secrets of the unseen previously unimaginable, etc). Then you wouldn't be prattling on like little sissy-gimps about how much you know and how little others know.
posted by Burhanistan at 1:33 PM on June 8, 2007


Do you guys realize that dios is responsible for almost 15% of the posts in this thread? Factor in the length and this is rapidly becoming the Dios Sets Straight The World show.
posted by JHarris at 1:36 PM on June 8, 2007


Do you guys realize that dios is responsible for almost 15% of the posts in this thread?

Well it does have a court decision in the post. My bad, I guess.
posted by Kirth Gerson at 1:37 PM on June 8, 2007


While I’m extremely opposed to not recognizing - or worse misrecognition of - errors on the part of police officers, there are a number of examples where training gets short shrift in favor of other considerations. And this might be the cause of many of these kinds of problems.
For example, the first thing that occured to me with the cop shooting the dog (in the title post) was that he didn’t make sure of his background (shouldn’t have shot IN to the house) apart from failing to kill the dog (assuming that was his intent, if it wasn’t, that’s even worse - not that there aren’t other ways to neutralize an animal, but I’m presuming he wasn’t well trained in the first place and any firearms training includes the old saw - don’t point your weapon at something you don’t intend to destroy).

So often hardware - a one time expense - gets budgeted for while training - and ongoing expense - gets shorted. The “military” mindset is lazy thinking on the part of departments. You use SWAT because they’re the best trained reactors. The problem is there’s no intermediate SWAT response. They’re not very verbal. And you don’t want them to be, it’d lessen their reaction time.

I’ve expounded on that subject before - you do want cops willing to risk/sacrifice their lives for citizenry. (That is the job. As much as it is a soldiers job to kill.)
Unfortunately, if you don’t have officers trained and supported to deal comfortably with less than maximum force in a variety of potentially (but not at the moment) dangerous situations, you’re probably going to send in SWAT. Which is, ultimately, a mistake if you need interaction not engagement. And indeed, is a real problem if no detective work is done and you have no intelligence either way as to which is needed and so you put the wrong kind of officer in the wrong kind of situation.

John Wills approaches this issue from the other side as criminal complacency.
(Bit light on straight facts, but the gist is solid.) I remember a situation in Chicago where the police shot a woman during a traffic stop who was reaching for her cell phone. Obviously, you swiftly reach into a bag or some such while a cop is standing there, it’s a problem. But had he reacted with non-lethal force and incapacitated her (albeit with doing some probable physical damage) that would have been a lawsuit. But shooting her, no problem, justified. There needs to be some middle ground as well as recognition of and redress for mistakes without the threat of such things crippling police behavior.

I think overall, this is a matter of department support and direction of funding. Less and less funding is aimed at community policing et.al (works fairly well, and even if it breaks even as a tactic the side benefits of folks getting to know you vastly improve policing) while more and more money is aimed at hardware and more antagonistic situational training. Not surprising, one is ongoing, the other is periodic or a static one time thing.

Ideally the beat cop should KNOW who lives in a given house because he’s been by there on his bike or walked by or knows someone on the block he can talk to about the place because he lives in his beat. (If, of course, the beat cop is in on the raid). Practically, he (and plainclothes) should be able to find out before the raid.

But it’s easier and cheaper to just hand people body armor and weapons and go full tilt.
And indeed, it’s militarization within the police department only in rigidity of heirarchal information flow.
You can’t treat cops like grunts. They need ownership of their intelligence - at the very least to be secure that they can act freely without worrying about a lawsuit or needlessly endangering innocent people.
Fixing the legal side of the lawsuit thing only exacerbates the flow down with the tactical problem and sets in stone cops not getting to do their own homework.
posted by Smedleyman at 1:41 PM on June 8, 2007 [1 favorite]


Let's call it pre-emptive amusement: Bork is a public persona, and -- to pull one of his more memorable quotes -- was for quite some time fond of writing things like:

Our expensive, capricious and unpredictable civil justice systems present precisely the kind of conflicting and costly state regulation of commerce that the Commerce Clause was designed to solve. Lawsuits, verdicts, settlements and the insurance necessary to defend and indemnify against them, are driving up the cost of goods and services everywhere, and consumers are paying the bill. The litigation explosion has no respect for the state lines because commerce and insurance are now national. Interstate commerce and trade have become the principal victims of a runaway liability system.

Courts are now meccas for every conceivable unanswered grievance or perceived injury. Juries dispense lottery-like windfalls, attracting and rewarding imaginative claims and far-fetched legal theories. Today's merchant [or event host? --ed] enters the marketplace [or hosts an event? --ed, again] with trepidation - anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates.


Those more familiar with the man's writings will almost certainly be able to find many more quotes after that one's fashion.

So the anticipatory amusement is as follows: now that news of this filing is making the rounds, as a public persona he will probably at some point offer some explanation for why this particular suit is not at a minimum the first step towards convincing a jury to hand his honorable self a lottery-like windfall. I concede the possibility that I will wind up so impressed with the principled clarity with which his honorable personage explains his reasoning and motivations, and walk away from having read said explanation convinced that it could not not be thus; however, I am chuckling at the moment because I suspect that when he is asked about this suit -- as, inevitably, he will be -- the reasoning behind his explanation will seem, at a minimum, capricious.

I suppose the relation of this to the primary thrust of the thread is more obscure than I thought when I posted: my interest in the broader subject matter of the post is mainly about the general arbitrariness of legal interpretation, as applied to the concept, here, of "seizure" -- one cannot know which of the many possible interpretations is correct unless one asks the correct authority -- and in that light the honorable judge's trip and fall provides some related, anticipatory amusement; it seems likely to illustrate that, to be confident in one's interpretation of the man's printed legal opinion one has no other recourse than to ask him directly.

To answer your direct question: the year and a day is memorable only because that period of time is used in a great many folk customs, and thus adds something of a mythic resonance to the description of an otherwise banal event.
posted by little miss manners at 2:07 PM on June 8, 2007 [1 favorite]


Bork has to eat his words there, for sure. I had never heard of him being an advocate for tort reform. I am only familiar with his judicial philosophy and constitutional writing, not his political writing. His judicial and constitutional theory does not make him axiomatically a tort reform advocate, but he appears to be so. Maybe he has changed his song now. I actually oppose tort reform. Which is why I thought Ethereal Bligh's comments funny. Tort reform is considered to be a Republican thing and Democrats are considered friendly to the trial lawyers. Yet I, who many here try to paint as being to the right of proto-fascism, think tort reform is bunk, while Ethereal Bligh is supporting tort reform right in line with Bork's apparently hypocritical comments.
posted by dios at 2:18 PM on June 8, 2007


Mmm... Smell that strawman burning? It must be barbecue season again.
posted by Blazecock Pileon at 2:37 PM on June 8, 2007


And Ethereal Bligh, don't look now, but you just made a case for tort reform that sounds a lot like George W. Bush.

Yeah, and...? I think the trial lawyers and the Dems that support them have some persuasive arguments, but in general I favor tort reform and I think the culture of free! money! from lawsuits is not a conservative strawman—it's something I've heard in person very often.

I'm not a partisan Democrat or leftist. I'm a pragmatist who has strong leftist sympathies. On a minority of issues, though, I take positions that are much more strongly associated with the right. Oh, well.
posted by Ethereal Bligh at 2:52 PM on June 8, 2007


cato institute filter: interactive map!!!
Botched Paramilitary Police Raids:
An Epidemic of "Isolated Incidents".

posted by andywolf at 2:57 PM on June 8, 2007


my guts telling me that property forfeiture has a role in any increases of police raids. at least to some degree.
posted by andywolf at 2:59 PM on June 8, 2007


I'm not a partisan Democrat or leftist. I'm a pragmatist who has strong leftist sympathies. On a minority of issues, though, I take positions that are much more strongly associated with the right. Oh, well.
posted by Ethereal Bligh at 4:52 PM on June 8


I wasn't trying to label you. I know you are a pragmatist, and I am not surprised by your support of tort reform. I just pointed it out because it is one of those things that people's small-minded pigeon holes can't deal with, so it makes me laugh a little. A lot of people here like to create strawman stereotypes of others because it makes them easier to criticize or ignore that way. So it always pleases me when there are issues that run these bullshit distinctions.

Trust me, I am well aware of the arguments for tort reform as it has been a big deal here in Texas for a decade and even a bigger deal in my line of work as you can imagine. I think both sides make good points, but I am opposed to tort reform for classical legal theory reasons with respect to trial by jury of peers. But that is neither here nor there. I wasn't trying to call you out on the point, I was just pointing out another example of why the world is not binary as so many here like to make it.
posted by dios at 2:59 PM on June 8, 2007


Do you guys realize that dios is responsible for almost 15% of the posts in this thread?

Unlike many of the commenters here, dios is actually providing relevant discussion, especially valuable because this stuff is his bailiwick. I'd rather have a comment by dios explaining a relevant point than ten comments by Outraged Citizens going "OMG police state!" And this despite the fact that I do in fact feel the country is heading in the direction of a police state and am suitably appalled. Noise is noise, whether you agree with the attitude or not.

Frankly, I'd be perfectly happy to watch EB and dios bat the ball across the net without the distraction of random passersby running on the court and blowing their party horns.
posted by languagehat at 3:01 PM on June 8, 2007 [2 favorites]


U.S. v. Alverez-Tejeda is pretty interesting in terms of trends (and aforementioned ‘seizure’). Apparently the old skool “Mission Impossible” style schtick is just fine.
posted by Smedleyman at 3:42 PM on June 8, 2007


That's plainly not the will of the victims of the invasion, but "The People" at large desire an actively deterrent police system with reasonable (and unavoidable) levels of human error.

if so, they're being ripped off ... please explain how people are being "actively deterred" from using drugs ... after 40 years, we still haven't eliminated the problem

please explain why accountability and willingness to pay for mistakes is unreasonable

This incident being a subset of that, it most certainly is "the will of the people."

have you actually ASKED people in a scientific poll whether the government should pay for damages in cases such as these?

also please explain why, in a constitutional republic that recognizes certain rights, "the will of the people" should always be respected under any circumstances, especially those in which the property of individuals is damaged and destroyed by mistake
posted by pyramid termite at 8:59 PM on June 8, 2007


languagehat writes "Frankly, I'd be perfectly happy to watch EB and dios bat the ball across the net without the distraction of random passersby running on the court and blowing their party horns."

Honk! Honk!
posted by krinklyfig at 9:47 PM on June 8, 2007


p.t., I think the issue here is that the Constitution is silent, as it should be, on what to do about the "corner cases" , as the programmers say.

but I agree we should not be mistaking apathy for will when talking about "the people".
posted by Heywood Mogroot at 9:53 PM on June 8, 2007


pyramid termite: please reread what I quoted with an eye more aimed at understanding me than finding something to argue against.

I did not mean to imply that I don't think police should be financially liable for gross errors. They absolutely should. I can see how I was ambiguous but in doing so I think I'm meeting you more than halfway.

I didn't make any claim that our police system is perfect, in fact I did quite the opposite. I didn't claim that this type of police action is beneficial for society at large. But I can't think of a better term for it than "active deterrent," where actions are taken with an intent to deter crime.

also please explain why, in a constitutional republic that recognizes certain rights, "the will of the people" should always be respected under any circumstances

That's not even close to anything I've said. The constitutional enumeration of our rights is very specific in its terms, and it permits reasonable search and seizure based on probable cause. The "will of the people" as I described it, and the constitutional protections of our rights, are consistent in this context.

Again, please note that the "typo" and "two doors down" scenarios negate the probable cause, and I believe the government should be held accountable for them. But it is a mistake to use this brush stroke to paint all invasive police action (or even all erroneous police action), as has been a common theme in this thread.
posted by Riki tiki at 5:54 AM on June 9, 2007


But I can't think of a better term for it than "active deterrent," where actions are taken with an intent to deter crime.

i'm a results orientated person ... clearly it's not working

The "will of the people" as I described it, and the constitutional protections of our rights, are consistent in this context.

no, you're basing this on the fallacy that because people haven't expressed an opinion against such actions that they're for such actions

and from the guy standing in the park with a megaphone with a red armband around his shoulder to the latest talk radio conservative troll, i have a deep and abiding suspicion of anyone or anything claiming to know what the "will of the people" is or that it should necessarily be followed automatically

which was the thought behind my original statement about "the people"

But it is a mistake to use this brush stroke to paint all invasive police action (or even all erroneous police action), as has been a common theme in this thread.

i think it can be argued that certain tactics and even the enforcement of certain laws have a corrupting influence on our society and these cases illustrate that
posted by pyramid termite at 8:01 AM on June 9, 2007


The constitutional enumeration of our rights is very specific in its terms, and it permits reasonable search and seizure based on probable cause

this is kinda awkward, but you recover later in the sentence.

A better formulation would be ". . . enumeration of the powers of Government is very specific . . ."
posted by Heywood Mogroot at 9:21 AM on June 9, 2007


Good point, Heywood. I stand corrected.
posted by Riki tiki at 9:39 AM on June 9, 2007


I know I came late, but:

ARRRGGHH
posted by tehloki at 8:14 PM on June 9, 2007


Re: Bork and tort reform:

In a 2002 article published in the Harvard Journal of Law & Public Policy--the official journal of the Federalist Society--Bork argued that frivolous claims and excessive punitive damage awards have caused the Constitution to evolve into a document which would allow Congress to enact tort reforms that would have been unconstitutional at the framing:

State tort law today is different in kind from the state tort law known to the generation of the Framers. The present tort system poses dangers to interstate commerce not unlike those faced under the Articles of Confederation. Even if Congress would not, in 1789, have had the power to displace state tort law, the nature of the problem has changed so dramatically as to bring the problem within the scope of the power granted to Congress. Accordingly, proposals, such as placing limits or caps on punitive damages, or eliminating joint or strict liability, which may once have been clearly understood as beyond Congress's power, may now be constitutionally appropriate.
posted by Mental Wimp at 3:57 PM on June 12, 2007


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