oldschool CxC

Tuesday, May 15, 2007

Judge Kozinski is one of my favorites and, although not a native speaker writes beautifully. Here is his dissent where the majority did not exclude evidence (the normal sanction) for violating the 4th amendment after police entered a home without a warrant.

There was absolutely no evidence of the government’s nightmare scenario that Walker lay bleeding and unconscious inside the apartment. As the 911 dispatcher’s log shows, there was “not enough time for Black to somehow get Walker back into the apartment, and to injure her, and then to leave, as the government theorizes could have been the case.” Nor were there any eyewitnesses, signs of a scuffle, reports of gunshots or even of a commotion. The abduction would have happened in the street, in broad daylight, yet no one saw a thing; the super, who talked to the police, reported nothing unusual.

...If this satisfies the government’s “heavy burden” to show “extraordinary circumstances” not based on “speculation,” then “heavy burden,” “extraordinary circumstances” and “speculation” have no meaning in these parts.

The majority gives the government a pass because “the exigencies of domestic abuse cases present dangers that, in an appropriate case, may override considerations of privacy.” The problem with this approach is that the government has any number of such crises-du-jour: terrorism, child pornography, child abuse, drugs, hate crimes -- the list is endless. When confronted with such serious crimes, it is the job of the police to be suspicious; the job of the courts is to insist that police develop evidence supporting these suspicions before they defile the sanctity of the home.

In a particularly disturbing passage, the panel majority opines that “[e]rring on the side of caution is exactly what we expect of conscientious police officers.” . This is entirely backwards when the cautious error involves invasion of the home. In such circumstances, we expect police to err on the other side of caution by staying out unless and until they obtain a warrant or satisfy the demanding constitutional standard for a warrantless search. The majority’s unfortunate phrase will be widely seen as a green light for the police to “err on the side of caution” by breaking into people’s homes based on half-baked suspicions.

When a panel of our court can find that the facts here satisfy the government’s “heavy burden” for invading the home without a warrant, I despair about the future of our constitutional rights. If the right accorded the greatest protection by the Fourth Amendment -- the right to privacy of the home -- can be so casually brushed aside, no right is safe. Because my colleagues do not similarly view this issue as one of exceptional importance, I sorrowfully dissent.

I agree with the good Judge, it is sad. Liberties wither in times of perceived security threats-- drug war, war on poverty, war on terrorism, war on capitalists-- and they rarely regain their former robustness.


Blogger REkz said...

Whoa. This sounded like one of my diatribes ... except I'd never quote that much of a judge's comments.

I guess judges were next on Gonzalez' list of targets? Didn't get to this 'uppity one' yet? :)

As for wars on things -- they are the way the monarchy confuses the poor into thinking wealth is fighting bad things, social ills, enemies, etc. The real battle is for wealth to preserve itself (in private hands) at all costs, and generally the best way is to keep pulling public $$$ to support it's 'socially necessary' expenditures (but of course at a profit).

12:35 AM  

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