Judge reads elegy for the Fourth Amendment

Last week, admonishing his colleagues, who had just turned away an important search-and-seizure case, Chief Judge Alex Kozinski, of the U.S. Ninth Circuit Court of Appeals, effectively pronounced the Fourth Amendment dead. After the court signed off on police search of an apartment without a warrant, probable cause or reasonable suspicion, Kozinski said, "Whatever may have been left of the Fourth Amendment ... is now gone."

In the case of United States v. Lemus, police peacefully arrested Juan Hernan Lemus of Calexico, California, outside his home "before he could fully enter the doorway and retreat into his living room." With Lemus in custody, and without a search warrant for the apartment, police then entered the dwelling for a look around.

From the majority decision (which is written like a crime novel):

Diaz, in the living room, got Detective Longoria’s attention. Wasn’t there something sticking out from the couch? Detective Longoria thought it looked like the butt of a weapon. Since Lemus was a felon, having a gun would be a crime. Detective Longoria lifted the couch cushion to make sure, and confirmed that it was a semi-automatic handgun. It was later determined to be a Sturm and Ruger, 9 millimeter.

Unsurprisingly, Lemus's attorneys challenged the search, which was the basis for subsequent charges unrelated to the original arrest. They pointed out that precedent permits search of the immediate area around suspects arrested in their home to assure the safety of the arresting officers, and limited protective sweeps of the full dwelling to make sure no potential allies of the arrestee are lurking in the shadows. But Lemus was already in custody, having been arrested outside. Police chose, on their own, to enter the residence.

No problem, said the district court. The majority of judges at the appeals level agreed.  "Lemus was arrested in an area 'immediately adjoining' the living room, a limited search of that room was proper without either reasonable suspicion or probable cause as a protective search incident to the arrest."

But Kozinski objects (PDF):

The panel's fig leaf for this clearly illegal search is that "at most Lemus was only partially outside" of his living room door when the officers seized him. Lemus, 582 F.3d at 963. So what? Under Buie, Lemus’s location at the time of arrest is irrelevant; it's the location of the police that matters. Buie authorizes a search incident to an in-home arrest because being inside a suspect's home "puts the officer at the disadvantage of being on his adversary’s 'turf,' " ...

Frankly, the majority's reasoning seems to suggest that police can conduct a full, warrantless search of your home if they arrange to arrest you within reach of your front door. Not that they would ever game such a legal rule, of course ...

Judge Kozinski points out the startling implications of the appeals court's decision to let the lower-court decision stand.

This is an extraordinary case: Our court approves, without blinking, a police sweep of a person’s home without a warrant, without probable cause, without reasonable suspicion and without exigency -- in other words, with nothing at all to support the entry except the curiosity police always have about what they might find if they go rummaging around a suspect’s home. Once inside, the police managed to turn up a gun "in plain view" -- stuck between two cushions of the living room couch -- and we reward them by upholding the search. ...

The opinion misapplies Supreme Court precedent, conflicts with our own case law and is contrary to the great weight of authority in the other circuits. It is also the only case I know of, in any jurisdiction covered by the Fourth Amendment, where invasion of the home has been approved based on no showing whatsoever. Nada. Gar nichts. Rien du tout. Bupkes.

Whatever may have been left of the Fourth Amendment after Black is now gone. The evisceration of this crucial constitutional protector of the sanctity and privacy of what Americans consider their castles is pretty much complete. Welcome to the fish bowl.

Very well reasoned. Very strongly worded.

But the majority decision in favor of the "fish bowl"still stands.

Pieces published elsewhere

In line with my recent post on the passing of British anarchist Colin Ward, I have a piece up at the interesting group blog, When Falls the Coliseum, on my increasingly black-flag-y sentiments (and I ain't just talking Greg Ginn).

At the same site, I have an unrelated piece on the changing nature of the writing biz (I can say "biz" can't I?).

The late Colin Ward showed that liberty isn't a Left/Right issue

Reason magazine's Hit & Run blog has a post up noting the passing of Colin Ward, a British left-anarchist. I'm especially sorry that this is my first encounter with Ward, since he apparently was best known not for looking to some utopian future, but for examining the here and now, as well as the past, for examples of real-life voluntary, cooperative alternatives to state institutions. His aim was to not just argue that an authoritarian state is immoral, but to demonstrate that it is and has been unnecessary.

People like Ward interest me not only because of his practical interest in applied voluntarism, but also because he -- a man who was as critical of social democrats as he was of Margaret Thatcher -- was a living, breathing exemplar of the principle that the real political divide isn't between Left and Right, but between liberty and authority. This may be a tough sell in the simple-minded world of Team Blue/Team Red America, but it's apparent that there are believers in liberty on both the Left and the Right, and that these people have more in common with one another than they do with their supposed comrades who are more interested in top-down control than in freedom.

The connection is especially apparent among out-and-out anarchists like Ward and, say, David D. Friedman, the anarcho-capitalist (and son of Milton). When you remove the coercive power of the state from the equation, not only are their criticisms of authoritarianism largely complementary, but their hyphenations (left- and -capitalist) become little more than expressions of how they would like to arrange their personal affairs, not something they want to force on one another.

As you move away from anarchism, the introduction of some degree of state power complicates things by raising the likelihood that somebody will be coerced to do things they don't want to do. But it's notable that libertarian-socialist Nat Hentoff, after losing his Village Voice column, found a home at the libertarian Cato Institute, which is often accused of being "right-wing." It's also worth noting, on the other hand, that Senators Orrin Hatch and Dianne Feinstein, supposed cross-aisle rivals, so frequently seem to find common cause on odious, authoritarian legislation.

Whatever the details of their differences, advocates of liberty really do have more in common with one another, as do advocates of authority. The real connections cut across the artificial Left/Right divide.

The challenge for liberty advocates, whether of the supposed Left or Right, is to look beyond supposed allies who mouth their favorite platitudes while forever increasing the power of the state over their lives -- and to get past unfamiliar terminology to find allies they didn't know they had.

As the late Colin Ward demonstrated, Left and Right don't matter; liberty and authority do.

Tagged and tracked by your own cell phone

Last Friday, federal attorneys told the U.S. Third Circuit Court of Appeals that government officials should be able to track the location of Americans by following their cell phone transmissions -- without having to get a warrant. While the FBI and state and local officials have already obtained logs from mobile phone companies that reveal the locations of customers' telephones, the practice has never formally been endorsed by the courts. The latest federal arguments -- and rebuttals by civil liberties organizations -- give the courts the opportunity to either support or repudiate federal claims that Americans have no "reasonable expectation of privacy" so long as they carry cell phones.

In a lower-court decision (PDF) regarding an ongoing drug investigation, now being appealed by the federal government, Magistrate Judge Lisa Pupo Lenihan warned:

[T]he location information so broadly sought is extraordinarily personal and potentially sensitive; and that the ex parte nature of the proceedings, the comparatively low cost to the Government of the information requested, and the undetectable nature of a CSP’s electronic transfer of such information, render these requests particularly vulnerable to abuse.

Lenihan determined that the information sought by the Justice Department should be available only if the government could meet the usual probable cause standards necessary for a warrant -- a standard the Justice Department claims to find too burdensome.

Responding to the federal government's position that signing a cell phone contract implicitly gives the state the right to know your whereabouts, the American Civil Liberties Union says the government "should not be forcing the nation's 277 million cell-phone subscribers to choose between risking being tracked and going without an essential communications tool."

In a friend-of-the-court brief (PDF), the ACLU, along with the Electronic Frontier Foundation and the Center for Democracy and Technology, support Lenihan's refusal to allow federal access to what Justice Department attorney Mark Eckenwiler calls "routine business records held by a communications service provider." Since those records reveal people's locations, the civil liberties groups argue that they were properly withheld, and that their disclosure raises serious Fourth Amendment concerns. Specifically, they agree that revealing such information should require a warrant.

Lenihan's opinion was signed by four of her colleagues in a show of solidarity that seems, from records of the proceedings, to impress the appeals court judges. The civil liberties implications of the Justice Department move also seem to impress the judges; at one point, Eckenwiler was asked from the bench:

There are governments in the world that would like to know where some of their people are, or have been. For example, have been at what may be happening today in Iran, have been at a protest, or at a meeting, or at a political meeting. Now, can the government assure us that -- one, it will never try to find out that information, and two, whether that information would not be covered ...?

It's unclear, however, whether that's an omen of the final result.

The full oral arguments are available online in audio format at the court Web site (see files beginning with 08-4227)

Hail Caesar ... err ... the President

Whether you call it Washington's Birthday (the official federal holiday) or Presidents Day (the common name and a holiday recognized in many states), the third Monday in February is set aside to honor the person in whom the executive power of the United States federal government is vested. That's reason enough to be leery of the day, offset just a bit by the happy fact that many Americans are spared a day of school or work as part of the celebration (not to mention the sales!). I say "leery" not just because of the particular individual who holds the office -- however disappointing the guy may be, he's hardly the worst of the bunch -- but because the office itself is so suspect, bloated with more power and expectation than any individual can handle, and any free society can survive.

Jimmy Breslin might have put it best when he said, "The office of president is a bastardized thing, half royalty and half democracy, that nobody knows whether to genuflect or spit."

Half of us might be willing to spit at any given moment, but usually only when the other side's guy has power. The rest of the time, we're busy genuflecting and larding the presidency with vast power to ... well ... wage wars unilaterally, hold enemy combatants terrorism suspects without trial or charges -- and subject them to torture, seize control of private companies, engage in domestic espionage...

And, while he's doing all this, the president is also supposed to act as an example for our children, spokesman to the world, spiritual leader and national recruiter for international sporting events.
As Gene Healy, author of The Cult of the Presidency, put it:

The chief executive of the United States is no longer a mere constitutional officer charged with faithful execution of the laws. He is a soul nourisher, a hope giver, a living American talisman against hurricanes, terrorism, economic downturns, and spiritual malaise. He--or she--is the one who answers the phone at 3 a.m. to keep our children safe from harm. The modern president is America’s shrink, a social worker, our very own national talk show host. He’s also the Supreme Warlord of the Earth.

This is insanity, of course. Only a thoroughgoing egomaniac could even want such an impossible job. Which may be why we get the presidents we've been getting.

It wasn't supposed to be this way. The Constitution mentions the presidency only after describing the powers and structure of Congress. While urging the adoption of that document, James Madison assured Americans in Federalist Number 48, " the executive magistracy is carefully limited; both in the extent and the duration of its power." Presidents before Woodrow Wilson didn't even dare deliver the State of the Union address to Congress in person, fearing that was a bit too monarchical.

The presidency didn't assume its current, monstrous, proportions through a coup. It gained greater power and prestige, slowly at first, and then rapidly through the twentieth century. Frankly, many Americans seem to like it that way, preferring a king to a president when all is said and done.

Maybe, deep down, most humans like doffing their caps and quaking in the presence of a mighty chieftain. Hiring and firing temporary administrators just isn't sufficiently majestic.

So enjoy your Presidents Day/Washington's Birthday. Just don't get carried away with the celebration.

Audi, the Schindler of our eco-totalitarian future

If you're like me, Audi's Green Police ad during yesterday's Superbowl was sort of a high point of creepiness -- and not just for its boomerific revival of a classic Cheap Trick song. No, the celebration of the right car purchase -- a "clean diesel" -- as a get-out-of jail-free card for a totalitarian eco-state sort of ruined car shopping for you while also hinting a bit too strongly at the direction in which the world is inching in its intolerant, lemming-like way.

Our friends in Britain already have to worry about government snoops pawing through their garbage and forcing their way onto private property to make sure residents of that unfortunate country are separating their glass from their plastic and doing business in officially approved ways. Maybe ... just maybe ... we're not that far off from the day when buying the the "correct" brand will count as a pass at roadblocks staffed by armed recycling fanatics.

I guess the only question is whether Audi thinks this potential Brave New fluorescently lit World is a good thing, or whether the company is warning us that it, Schindler-like, is our only hope.

The Audi advertisement glimpse of our eco-conscious (or else) future is below.

I can see clearly now (my light bulbs are gone)

Who doesn't like being bossed around and told what to do -- for our own good, of course? Take, for example, incandescent light bulbs. Already banned in Australia in favor of more energy-efficient alternatives -- in particular, compact fluorescent lamps (cfl) -- traditional light bulbs are also on their way out in Europe and due to be banned in the United States starting in 2012.

Nevermind that the more-expensive bulbs deliver cost-savings to users only if people change their light-using habits and leave lamps on for relatively uninterrupted periods (Britain's Daily Telegraph reported in September 2009 that "[t]he lifespan of energy-saving light bulbs can be reduced by up to 85 per cent if they are switched off and on too often.")

Nevermind that the new mercury-laden bulbs have to be disposed of carefully.

And nevermind that some people just don't like the light the damned things throw and would rather stick with the tried-and-true old bulbs. We've all been drafted into the latest social crusade to save energy.

Well ... Maybe some of us don't like being bossed around.

Reason's Nick Gillespie has an interesting take on the world-wide Noble (whether you like it or not) Light Bulb Experiment below.



And beware this (tongue-in-cheek) warning from the future: "Boy, 7, in critical condition after light bulb raid."

Reason number 97 why you should never comply with a law requiring you to register anything

I've never understood the urge that some people have to "register" allegedly dangerous objects, substances or creatures with the government. Fans of registration act shocked that anybody could object -- after all, we get to keep our dogs, guns, cars and what have you -- without acknowledging that their preferred policies fail to minimize the supposed risks of whatever they've targeted while maximizing the dangers inherent in forcing public interaction with law-enforcement.

Take the case of Joe Fiorito. He's a columnist for the Toronto Star and a citizen of the land up north where ownership of anything that goes "BANG" is tightly regulated by the government. A generally reliable fan of the expansive state, Fiorito has acquired a new-found skepticism toward gun registration after a recent run-in with the law. He wrote in his column on January 29 of events after he responded to a loud pounding on his front door:

I asked Officer K. if he'd mind getting to the point. He thought I was being difficult. Not me. I am, however, uncomfortable playing 20 Questions in the morning with armed men on the porch.

The point?

Officer K. reminded me that my firearms licence had expired. He said I could turn the gun over to them for storage, or they could take the gun and destroy it.

My gun? It is a single-barrel .20 gauge shotgun. It is 40 years old. I used to take it into the woods up north to get partridge in the fall.

The last time I used it, I was walking along a hydro cut when I surprised a deer in the long dry grass. She leapt away in slow motion, flanks rippling, nostrils flaring; too beautiful.

I haven't hunted since.

I own no shells.

But it's my gun, dammit. I guess, when the Feds began the long-gun registry, I should have lied and not bothered to register the damn thing.

Officer K. pressed me about turning the gun over, there and then, for storage or destruction. For a brief moment I thought about handing it over, if only to get rid of him and his pal.

And then it just seemed wrong:

A couple of cops show up at my door, unannounced, and the talkative one says he has reason to believe, and I'm supposed to hand over my property just like that? 

Fiorito declined the officers' request and told them to take whatever step they thought appropriate.

An hour later Officers F. and K. showed up with their boss, Officer Nicolle. He was as angry as he was pushy and he said he wanted the gun or he'd come back with a search warrant.

I was offered no options.

No one ever said, look, you have to renew your licence; we'll give you two weeks, here's the paperwork you need; and in two weeks, if you don't have the licence we'll have to ask you for the gun.

In the absence of options, faced with a search warrant and outnumbered three to one, I said I'd get the damn shotgun. 

Of course, being a columnist -- even one who traditionally supports restrictive gun control -- Fiorito wrote about his unpleasant experience with Toronto's finest. The cops, apparently, weren't pleased. A few days later, he revisited the subject.

An aside: as I began to write this – on the afternoon of the day the column about the gun-snatching appeared – two cop cars spent five minutes idling in front of my house. Surely a coincidence. ...

A final aside: Officer N., the cop with the sneer, said as he was leaving that some sort of understanding might have been reached but not with a guy like me. All he knows about a guy like me is that I have a sharp tongue when I'm being bullied. If that's all he knows, he doesn't read the papers much.

That's right. The cops responded with a crude effort at intimidation -- and were open about their selective enforcement of the law. Decline to kiss their asses and they're not so nice.

Is there any wonder that Fiorito, a self-identified social democrat who opposes private ownership of handguns and supports Canada's gun registry, writes, "I guess, when the Feds began the long-gun registry, I should have lied and not bothered to register the damn thing."

Lots of people subject to arbitrary and intrusive regulations surely feel that way now -- especially those who can't easily publicize their ordeals. It's impossible to avoid drawing a conclusion from Fiorito's situation about the wisdom of submitting to any government registration scheme, whatever the subject of the registration may be -- or indeed, the wisdom of expanding government officials' authority over our lives, so that we require permission and forbearance just to get through our days.

Soon, smooching the sergeant won't get you out of the draft

Following on President Barack Obama's comments on allowing gays to openly serve in the military, Tuesday's endorsement of the idea by Admiral Michael Mullen, Chairman of the Joint Chiefs of Staff, suggests that the administration is moving beyond stroking its supporters on the issue and poised to actually implement the idea as policy. When the United States military finally allows gays and lesbians equality in uniform with their straight comrades, it will be following in the footsteps of countries like Canada and Australia, since most of America's allies have already taken this step.

Last week, in his state of the union address, President Obama promised, "This year, I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are." That's no surprise coming from Obama, who promised on the campaign trail and soon after taking office to do away with the "don't ask, don't tell" policy implemented during the Clinton years. But promises made in speeches don't necessarily indicate immediate changes in rules and regulations.

But yesterday, speaking before the Senate Armed Services Committee, Admiral Mullen commented:

[I]t is my personal belief that allowing gays and lesbians to serve openly would be the right thing to do. No matter how I look at this issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens.

Of course, Mullen framed his commitment to loosening anti-gay and anti-lesbian policies in terms of how to "best make such a major policy change in a time of two wars." The admiral echoed Defense Secretary Robert Gates, who has established a working group to study the issue, take testimony and develop an approach for making the policy change. Speaking before the same committee, Gates acknowledged that "our approach may cause some to wonder why it will take the better part of the year to accomplish the task." That approach may raise fears that the issue will be committeed to death, with little accomplished in the end.

Then again, President Truman's racial desegregation of the military took two years to accomplish after his executive order to that effect was issued.

The United States is a latecomer to sexual integration of the military. According to the Palm Center at the University of California -- Santa Barbara, countries that allow gays and lesbians to serve in uniform (PDF) include:

Australia
Austria
Belgium
Canada
Czech Republic
Denmark
Estonia
Finland
France
Germany
Ireland
Israel
Italy
Lithuania
Luxembourg
Netherlands
New Zealand
Norway
Slovenia
South Africa
Spain
Sweden
Switzerland
UK
Uruguay

While advocates of personal freedom will applaud a policy change that would bring the government closer to treating gays and straights equally, there is one potential downside. If -- or when -- the government next decides to force unwilling victims into uniform with a return to conscription, it will no longer be possible to escape the draft by claiming to be homosexual.

Is permit-free 'Vermont carry' coming to Arizona?

On February 1, Arizona's State Senate Judiciary Committee voted in favor of a bill that would eliminate criminal penalties for people who carry firearms concealed without a permit. The measure has provoked opposition from an association representing chiefs of police in the Grand Canyon State -- which some cynics might well take as an implicit endorsement of the proposal.

Arizona already allows open carry -- carrying a firearm in plain view -- without a permit, and is a "must-issue" state in which carry permits are readily available to people with a clean record who satisfy basic requirements. But it's not uncommon for un-permitted Arizonans to tuck guns in their pockets when stepping out for a hike, to run dogs or for other purposes, and so risk criminal penalties for a victimless act if caught. That has prompted legislators to consider following in the footsteps of Vermont and Alaska, states which don't require carry permits and have seen little in the way of a downside from removing one pitfall among many from the lawbooks.

The proposed bill, SB 1102, strikes language from the law that penalizes carrying any concealed weapon, except a pocket knife, without a permit, and that also bans having a weapon "concealed within immediate control of any person in or on a means of transportation." The measure passed the Senate Judicary Committee by a 4-3 vote.

If it becomes law, the bill would still leave permits available for those who want them -- especially people who want to carry their guns in other states that offer reciprocity to Arizona permit-holders.

In response, John Thomas, the lobbyist for the Arizona Association of Chiefs of Police, said, "SB 1102, if enacted into law, will take Arizona back to the Wild West carry, with no consideration of officer safety.''

Historians might note that Arizona should be so lucky -- several studies have found the "Wild West" to have lower crime rates than modern America. In Gunfighters, Highwaymen & Vigilantes, author Roger D. McGrath, a professor of history, referring to the "rough" mining towns he researched, wrote, "Bodie's rates of robery, burglary and theft were dramatically lower than those of most U.S. cities  in 1980." He added, "Aurora and Bodie women, other than prostitutes, suffered little from crime or violence." Not to minimize the crimes suffered by women in the sex trade, but women in that socially and legally stigmatized business continue to suffer more severely from crime than other women.

The towns McGrath studied did have high homicide rates but "those killed, with only a few exceptions, had been willing combatants, and many of them were roughs or badmen." Basically, the violence was largely confined to a subculture of voluntary participants -- which is almost the only part of the Old West we see in the movies.

Tellingly, McGrath found, "[t]he citizens themselves, armed with various types of firearms and willing to kill to protect their persons or property, were evidently the most important deterrent to larcenous crime."

It's not to much of a stretch to infer that Arizona's modern chiefs of police oppose SB 1102 and its looser firearms restrictions because they just don't want to be rendered unnecessary.

Changes coming

It seems that Blogger, at long last, will be dropping support for FTP-published blogs in March. A few of you fearless readers have urged me to switch over to WordPress, and it looks like I'll be doing that out of necessity, instead of choice, in the near future.

Please bear with me as I inevitably blow the place up a few times, and accidentally translate all the content into Portuguese.