Patterico's Pontifications

11/28/2006

Libertarian Calls for Federal Oversight of Local Police Techniques; Patterico’s Devil and Angel Dispute How Best to Respond

Filed under: General — Patterico @ 8:05 pm



I have two little guys, one sitting on each shoulder, when I blog. On one shoulder is the little guy in the devil outfit. He’s the one who is forever imploring me to snark at people and get into fights with them. He’s entertaining, and I give in to him sometimes — but he often gets me into trouble.

On the other shoulder, I have the little guy in the angel outfit. He warns me to be polite and understated in my observations, claims, and inquiries. This guy is a little boring sometimes, but he’s probably the right one to listen to in most cases.

I got different reactions from these guys when I read Glenn Reynolds’s observation that we need federal legislation to tell local police departments how to serve search warrants.

The guy in the devil suit wasted no time in whispering: is this an example of fair-weather federalism?

I’m ignoring that guy and listening to the guy in the angel suit, who advises me to ask this polite question of Prof. Reynolds: can you tell me how your proposal squares with federalist principles?

UPDATE: I’ll add that if Prof. Reynolds is simply referring to his pet idea of eliminating official immunity in such raids, I don’t necessarily see a federalism problem with that if it’s limited to the federal section 1983 statute. I do have a problem with the federal government telling local police how to do their jobs. Ironically, the former (eliminating immunity) would have the same effect as the latter, in reality. The wisdom of that step as a policy matter is a question for another day.

UPDATE x2: Prof. Reynolds responds here, saying that the whispered accusation of “fair-weather federalism” made by the little guy in the devil suit on my shoulder is “silly.” He argues that kicking in someone’s door without a very good reason is a deprivation of liberty and property, and often life, without due process.

But in the Terri Schiavo case, I made a similar argument based on due process rights. You can read my argument here. I argued that language in Supreme Court cases supported the position that life-or-death issues like the ones raised in the Schiavo case must be litigated according to a “clear and convincing” standard of proof, and that federal courts have an appropriate role in reviewing such decisions to ensure that the federally mandated standard of proof was properly applied — much as happens in habeas corpus proceedings in criminal cases.

At the time Prof. Reynolds dismissed arguments like mine on federalism grounds. [UPDATE: I should have included a specific link to the particular post I meant. Here is that link.]

I don’t understand why. If you read my argument on the Schiavo case, it seems to me that I make at least as strong a due process argument as one saying that police fail to observe due process of law when they enter a home pursuant to a lawful search warrant, signed by a neutral and detached magistrate. (In cases where the warrant is invalid due to bad faith on the part of the police, there is already relief available under Section 1983.)

In any event, in an update, Prof. Reynolds seems to limit the scope of his proposed federal legislation to stripping away immunity in no-knock cases. If that is all he means to propose — and he intends this immunity-stripping to apply only to liability arising under existing federal law — that does not strike me as an example of fair-weather federalism. But I think a ban on no-knock searches would be.

UPDATE x3: Prof. Reynolds has responded further. Rather than having the updates completely swallow the post, I’ll respond further in a new post.

79 Responses to “Libertarian Calls for Federal Oversight of Local Police Techniques; Patterico’s Devil and Angel Dispute How Best to Respond”

  1. [C]an you tell me how your proposal squares with federalist principles?

    Much in the same way federal civil rights laws prohibit the lynching of uppity nigras, no matter how venerable it might be as a state tradition, or how often the local police turn a blind eye to the custom.

    “Federalism” isn’t a mandate to allow state abrogations of the Federal constitution. I should’ve thought the answer was so obvious as to obviate the need for explanation.

    Dale Franks (cbd421)

  2. It’s not fair to leave me puzzling over whether that was a red herring or a straw man late in the evening like this. maybe both.

    Mostly it’s a nonsequitur, I think: As Dale points out above, Federalism isn’t a mandate to ignore the Constitution, and there are certain things — like, oh, the right to be free of unjustified intrusions and gunfights in your living room — that ought to be common to all Americans.

    Charlie (Colorado) (19fced)

  3. I completely agree with the general principle that federal intervention is appropriate when necessary to safeguard federal constitutional rights. This is the argument I made in support of federal legislation in the Schiavo situation. That legislation merely provided for federal court review of federal rights, and I thought it was appropriate, as I detail at length in the link above.

    But humor me. Could you explain to me what federal constitutional right is being violated by lawful no-knock warrants signed by a neutral and detached magistrate? That isn’t as obvious to me as it apparently is to you.

    Patterico (de0616)

  4. Can you folks make your argument with a bit more specificity?

    Patterico (de0616)

  5. Your point is valid, but only goes halfway. We should be questioning the federal War on Drugs. Given that the prohibition of alcohol required a Constitutional amendment, it appears that at one time banning a vice substance was not considered a valid option for the federal legislature. This should not be surprising, since the 9th amendment clearly says any power not explicitly given to the federal government is retained by the states and the people.

    If the states are left free to come up with their own drug prohibition or regulation, we may likely see a reduction in the current number of military-style home invasions.

    Of course, we would also have to prohibit the federal government from strong-arming the states that don’t play ball, by withholding funds – funds which would otherwise be available to the states if the federal government didn’t tax them first.

    So it’s a whole ball of yarn that will require a lot of change (going back to the original restraint of the Constitution with regard to federal control) before being unraveled. But I do agree that you can’t fix it by asking the federal government to step in even more than they do now.

    Scott S (38ff57)

  6. Dale Franks and Charlie (Colorado), I don’t have to be a lawyer to know the difference between constant, widespread violations of the Constitution upheld by state law and a high-profile screw-up that has attracted attention to a bad police move. The one hasn’t yet risen to the level of the other in this country.

    Anwyn (1a31c4)

  7. Scott S,

    Can we not have every thread be an argument about the war on drugs?

    Patterico (de0616)

  8. Well, this probably doesn’t agree with established precedent, but it seems like this is a good time to start re-enforcing the 4th amendment. I know the Supreme Court doesn’t think that the 4th amendment applies for drug cases, but perhaps it’s time to take a step back.

    Russell (a32796)

  9. Instapundit’s suggestion bothered me when I first read it, so much that I actually thought about emailing Prof. Reynolds a comment. (That’s my devil side. The angel side realized Prof. Reynolds is a nice guy but he doesn’t care what I think about that topic.)

    It bothered me because of practical issues more than Constitutional/federalism objections, although basically I think the rationale is the same. Why do we want more federal laws requiring local police departments to dismantle or curtail their resources? SWAT teams might be impossible to maintain in very small towns – where there are less than 5-10 police officers on the entire force – but what about NYC? Look at the target-rich environment the police have to defend in New York and its boroughs. Think of the manpower and training the NY police department can bring to bear in protecting its citizens. A one-size-fits-all set of federal laws would leave them SWAT-deprived or subject to federal oversight like our school systems during desegregation.

    Maybe Prof. Reynolds intended his comments to apply only to drug cases but, if so, I think it would be more direct to advocate legalization of specific drugs rather than to eliminate or curtail the methods of enforcement. His suggestion reminds me of an unfunded mandate because the police would be saddled with rules and regulations as well as a reduced ability to choose or control their tactics. How is that a good thing unless your real goal is to defang the drug laws?

    DRJ (0df497)

  10. Dale Franks:

    “Federalism” isn’t a mandate to allow state abrogations of the Federal constitution. I should’ve thought the answer was so obvious as to obviate the need for explanation.

    You’re right, of course, but … hello?!

    Xrlq (1e3b05)

  11. Could you explain to me what federal constitutional right is being violated by lawful no-knock warrants signed by a neutral and detached magistrate? That isn’t as obvious to me as it apparently is to you.

    The 4th Amendment bans unreasonable searches.

    No-Knock entries seem reasonable to apprehend violent criminals. But, once you’ve decided to use more or less blanket No Knocks for non-violent offenders, I think you’ve clearly crossed over into “unreasonable” territory. Violent confrontations are an inevitable result of No Knock warrant service. This especially true when they are conducted in the wee hours of the morning. A situation will inevitably arise when a homeowner, frightened and confused will open fire on the police, a situation that wouldn’t arise in the absence of the No Knock, dynamic entry. The result so far has been 40 dead citizens, and a similar number of wounded or dead police officers.

    If it is a matter of traditional jurisprudence that 100 guilty men go free rather than 1 innocent person be convicted, how much more so is it important that 100 druggies dispose of their stash rather than an innocent citizen be killed?

    Dale Franks (cbd421)

  12. You’re right, of course, but … hello?!

    Are you seriously arguing that federal intervention into a state family law case, i.e. the determination of which party has the legal authority to make medical care decisions, is in any way comparable to the Federal interest in enforcing the 4th Amendment?

    Really?

    Dale Franks (cbd421)

  13. I haven’t seen an argument yet that makes the legal case that the use of no-knock warrants violates the U.S. Constitution.

    You can do as Dale Franks has, and define “unreasonable” as “engaging in a policy with which I disagree” — but that is not legal analysis. That falls under the rubric of “that with which I disagree must be unconstitutional.” That’s a popular belief, but it’s not the law. There’s a body of law regarding the constitutionality of search warrants, and no-knock warrants that are properly applied for and approved fall on the constitutional side of the line.

    Now, if I’m wrong about this — or if, in a particular situation, a warrant and/or the manner in which it is executed is indeed unconstitutional — then it seems to me the proper place to address that is the courts.

    Why should we need new legislation? We already have the exclusionary rule and section 1983.

    Patterico (de0616)

  14. If it is a matter of traditional jurisprudence that 100 guilty men go free rather than 1 innocent person be convicted, how much more so is it important that 100 druggies dispose of their stash rather than an innocent citizen be killed?

    That is a policy argument.

    But that policy argument can be hashed out by the states.

    Why must the federal government impose a uniform standard?

    I am really interested to see how the libertarians — and we know there are plenty inhabiting these comment threads — feel about this suggestion of federal legislation.

    I have a feeling this is headed towards the “lawyers don’t care about justice” angle again . . .

    Am I going to have quote Scalia at you people again?

    Patterico (de0616)

  15. Are you seriously arguing that federal intervention into a state family law case, i.e. the determination of which party has the legal authority to make medical care decisions, is in any way comparable to the Federal interest in enforcing the 4th Amendment?

    Enforcement of the Due Process Clause is analogous to enforcement of the 4th Amendment, in the sense that they are both constitutional provisions.

    But you’re right, Dale. This case and Schiavo aren’t comparable.

    Because federal intervention in Schiavo was indeed necessary to protect Due Process rights, whereas I don’t see an argument that federal legislation banning no-knock raids is necessary to enforce the 4th Amendment.

    Patterico (de0616)

  16. Glenn’s whole argument seems to be a classic appeal to higher authority rather dealing with the facts in Atlanta. Sounds, unfortunately, like a Liberal or a Religionist; not a libertarian.

    Me, I’m a Minarchist.

    RiverRat (8ec098)

  17. I think SCOTUS is right in no-knock drug cases. The catch is that a court can, in leisure, decide about the transition of a house from a residence to a place of drug sales and storage.

    The police should sharply curtail the use of no-knock; there are better ways.

    RJN (e12f22)

  18. RJN, what do you think about *federal legislation* to mandate changes in no-knock policy?

    Patterico (de0616)

  19. You can do as Dale Franks has, and define “unreasonable” as “engaging in a policy with which I disagree” — but that is not legal analysis.

    Well, uh, actually, I define “unreasonable” as a policy that inevitably leads to the death of innocent civilians at the hands of the police, and that assigns the gathering of evidence as the highest priority of the policy, rather than public safety.

    We already have the exclusionary rule and section 1983.

    Neither of which prevent police officers from killing innocent civilians.

    There’s a body of law regarding the constitutionality of search warrants, and no-knock warrants that are properly applied for and approved fall on the constitutional side of the line.

    Oh. Well. That’s alright then. Omelettes. Eggs. Whatever.

    Maybe, in the future, the Supreme Court will decide that no-know warrants require a higher degree of judicial scrutiny, so there’s really no need for Congress to much about with it.

    Or not.

    It doesn’t really matter, I guess, so long as innocent citizens are killed when the warrant was issued in a valid manner. Because the validity of the warrant, that’s the really important thing.

    Dennis Prager is right:

    Most people leave law school morally worse than when they entered. When they enter law school, most students think in terms of right or wrong. In law school they are taught to reject such thinking and to think only in terms of legal and illegal. This transformation of morals into legal categories, reinforced most especially in trial law, and particularly among criminal defense lawyers, explains the proliferation of amoral lawyers and the destructive role many trial lawyers play in our society.

    Dale Franks (cbd421)

  20. Previously, I said:

    I have a feeling this is headed towards the “lawyers don’t care about justice” angle again . . .

    I’m feeling vindicated in light of Dale Franks’s comment.

    Dale, if you were to go to the Supreme Court of the U.S. and argue that this is a valid issue for the federal government to pass legislation on, what would your argument be?

    Do you think that the Court would be impressed if you made policy arguments about how INNOCENT PEOPLE ARE DYING? Do you think the Justices would care if you argued that LAWYERS DON’T CARE ABOUT RIGHT AND WRONG?

    Those are great arguments to make in a policy setting. But I’m asking a legal and philosophical question: how is this proper from a viewpoint of federalism?

    Do you have an actual legal argument as to how this is a valid federal issue?

    Put another way:

    I previously linked a post of mine advancing a legal argument as to why federal intervention was appropriate in the Schiavo case. I am proud of that post, and have yet to see anyone demolish it on the merits.

    But what if I hadn’t made a legal argument? What if I had said: TERRI SCHIAVO’S LIFE IS A LIFE! LAWYERS DON’T CARE ABOUT LIFE! IT’S UNREASONABLE TO TAKE HER LIFE! SHE’S INNOCENT!

    I could even quote Dennis Prager!

    There are good people on both sides of the Terri Schiavo tragedy, but chances are that if you affirm Judeo-Christian values, you have opposed pulling the feeding tubes from the severely brain damaged woman’s body.

    All of this might have great emotional appeal. I could make fun of lawyers. I could scream about the value of LIFE. I could say that anyone who disagrees with me HAS NOT BEEN TAUGHT TO THINK ABOUT MORAL ISSUES IN TERMS OF RIGHT AND WRONG.

    But that would be a pathetic legal argument.

    Still waiting for a good reason why this is a federal issue.

    Patterico (de0616)

  21. Patterico:

    I am stuck. After you asked your question I thought of Gideon, and Miranda, and muddled around in my head for some way to get protections for the Fourth Amendment of that sort.

    Then I looked at the ’06 SCOTUS decision on no-knock, and decided they were wrong, or right, but we were screwed. So, I repudiate my comment of 9:45, and I join in the call for legislation.

    The Fourth doesn’t provide an exclusion for no-knock, and this new court won’t read between the lines and see injustice, so legislation it is. We may need some legislation to put in some new lines, of protection, for the Court to see.

    Or, maybe get an egregious example of the police being induced, by the Supreme Court, to get careless and sloppy, and lazy and bloody, and push a law suit back to the Supremes. Maybe they will understand that modern times are such that additional safeguards for citizens in their homes are required.

    RJN (e12f22)

  22. Here is Glenn Reynolds’ column in Popular Mechanics. It gives a bit more detail.

    A couple of morsels from near the end:

    Don’t get me wrong: Police often do dangerous work and they need equipment that’s going to protect them. And dynamic entry is valid when dealing with desperate criminals, but these tactics put ordinary citizens—and the police—at risk. And when they do, it’s often hard to get redress. Lawsuits against police and supervisors face strict legal limits in the form of “qualified immunity,” and prosecutors, who work with the police on a regular basis, are unlikely to bring criminal charges against officers who negligently kill people. But homeowners confronted with tactics like flash-bang grenades and shouting that are intended to disorient targets, tend to be held to a much higher standard.


    Police raids should be videotaped, in an archival format that discourages tampering. And I think we need legal reform, too. Police who raid the wrong house, or who fail to give homeowners adequate warning except in truly life-or-death situations, shouldn’t benefit from official immunity.

    Appears to me that only the immunity stripping might be addressed by federal legislation, by amending the infamously toothless tiger 42 USC 1983.

    The videotaping would certainly be a state matter.

    The other problems that Reynolds points out, that prosecutors fail to prosecute, and that civilians are held to a higher standard of behavior than police, are also addressable at the state or even more local level.

    Occasional Reader (473847)

  23. So RJN, in your view, the 4th Amendment provides for what?

    Patterico (de0616)

  24. “So RJN, in your view, the 4th Amendment provides for what?” P

    As of now, the Fourth Amendment provides much less protection than I had thought it did. Silly me. My local police are free to decide what the Fourth Amendment means, and what protection it affords.

    My sweet America. Gurgle, gurgle.

    RJN (e12f22)

  25. Another federally addressable issue: reducing both federal subsidies and mandates on local police agencies, especially reducing militarization subsidies. This is addressed in a thread at the Volokh Conspiracy today.

    I don’t think that reducing federal subsidies and mandates is antagonistic to federalism, at least in the present universe.

    Occasional Reader (f09cce)

  26. Dale, if you were to go to the Supreme Court of the U.S…

    First of all, I wouldn’t, because…

    Those are great arguments to make in a policy setting…

    And so I would go to the legislature, the appropriate venue for setting policy, and say that the 4th Amendment protects the citizenry from unreasonable searches. The national legislature, therefore, exercises its valid powers in setting limits on the state police powers in respect to no-knock warrants since a) the 14th Amendment incorporates the 4th Amendment restrictions as applied to the states, and b) Federal limits to the police powers of the states are an inherent function of the constitutional guarantee of a republican form of government to the citizens of the states, since such limits are an inherent feature of republican government.

    Then I’d pass the law, limiting the use of no-knock warrants for both federal and state police agencies, and prosecutors like you could then sue in federal court to have the law declared unconstitutional.

    Or, perhaps I’d simply strip the federal courts of jurisdiction to hear disputes arising from the law.

    Then, we’d see if the courts would hear it, anyway. If so, then we’d see if the courts would declare that Congress doesn’t have the legitimate power to increase constitutional 4th Amendment protections. I think it’s certain they would rule that the Congress does, in fact, have the authority to do so for federal agencies.

    If they ruled that the Congress doesn’t have the power to regulate local agencies directly in this area, then no big deal, because the law would also state that no Federal money would be given to any police agency for any reason, if they do not incorporate the federal rules for no-knock warrants.

    That would defund about half the SWAT teams in the country for a start. I suspect that police agencies would start formulating very precise rules about when no-knock warrants could be applied for.

    Dale Franks (cbd421)

  27. “But humor me. Could you explain to me what federal constitutional right is being violated by lawful no-knock warrants signed by a neutral and detached magistrate? That isn’t as obvious to me as it apparently is to you.”

    Come now, patterico. This is not in good faith.
    The answer to your question, as you posed it, is “nothing,” but like a good lawyer, you’ve elided a couple things in that phrasing.

    Now, granted, I’m not a lawyer (btw… love your blog… too late to mention that?) But it seems to me your statement

    no-knock warrants that are properly applied for and approved fall on the constitutional side of the line.

    apposite as it may be, doesn’t quite address a) the case at hand or b) the possible scope of this putative legislation.

    Put another way, (assuming the worst,) is a warrant that is based on faulty or coerced informant testimony “properly applied for?” Is a warrant that is literally rubber stamped, legally speaking, “properly approved?” IOW, doesn’t “propriety” in this sense demand a certain amount of diligence from the officers and magistrate in question?

    Thus, (again, assuming the worst,) IF IF IF the feds should realize that in, for example, atlanta, the standards of “proper” approval and execution of search warrants, i.e, standards which would be consonant with the 4th amendment, aren’t being enforced, wouldn’t they then be justified in enacting legislation?

    Please note I am trying to address this in the manner you recommended… i just may not have the vocabulary for it.

    Put one last way before I’m off to bed…
    we have a situation in which it is Possible, but not known, that
    1) The police knowingly (or negligently) performed a dynamic entry on a target that, had proper surveillance been carried out, would likely have been determined as a poor candidate for such a tactic, according to your own previous expert,
    2) people were killed and gravely injured as a result,
    Additionally, according to your expert, (whose exact words, of course, i can’t read, as i’m writing the comment,) suggests that this is not a unique occurence.

    So, if we grant that it is likely that in a nontrivial number of american state or local jurisdictions, dynamic warrants are being approved and/or executed without appropriate care, i.e., being rubber-stamped, literally, must we not stipulate that while such warrants may be legal, these sloppily, clumsily approved warrants are unconstitutional to the extent that they expand the sanction of state violence arbitrarily?

    Are you really suggesting that if Sheriff Bo-Jim Willy snd his buddy Judge Smales approve and execute a dynamic warrant, a warrant which by its issuance raises the possible stakes of violence in a way which should be clear to the issuer, without doing their homework (their jobs) and someone dies, the feds should butt out? No 4th amendment to see here? This is not the gross dereliction of duty you’re looking for?

    Anyhoo, gave it my best shot. I’m calling some lawyer friends tomorrow.

    One last thing… what do you have against old people, that you want so dearly to see them executed by your jackbooted rampart division orc-troops?

    jdubious (cd4728)

  28. I’m ignoring that guy and listening to the guy in the angel suit, who advises me to ask this polite question of Prof. Reynolds: can you tell me how your proposal squares with federalist principles?

    Well, we could make it real simple and reserve no-knock warrants to the Feds, on the supposition that only serious federal cases (e.g. terrorism) require them.

    Of course, if they did that, any number of local jurisdictions would want to review the federal warrants, so maybe this doesn’t quite solve the problem.

    Hmmm … maybe a Federal Warrant Review Board to sign off on all local no-knock warrants.

    I’m torn between whether both of these suggestions are completely silly, or if there is something there. If Cato’s numbers of 3,000 annual NKW in 1981 vs 50,000 today are correct, maybe some kind of speedbump is a good idea.

    Kevin Murphy (0b2493)

  29. The basic answer is “federalism”, like “privacy” succumbs to the “to do what?” question. Or, in layman’s terms: You don’t need rules until some a**hole proves you do need them.

    Kevin Murphy (0b2493)

  30. I think part of my problem is this:

    About 5 years ago, someone reported to the police that a kidnap victim was being held at my address on West 78th St. It turned out that the right address was East 78th St, about 12 miles away.

    No one was at home at the time, but I was told by the police that they entered my house through an unlocked door.

    I’m rather glad no one was home.

    Kevin Murphy (0b2493)

  31. Nice post jd. The last question was particularly poignant.

    The original post looks right in questioning federal oversight over warrant serving, but it seems logical to me that warrant issuing and oversight of some degree are clear requirements to defend constitutional rights.

    That being said I have no legal expertise, so what seems logical to me frequently proves not to be in line with the practical mechanics of the system (though I suspect that federalist ideology is also somewhat out of step with the practical mechanics and that public outrage will always have a greater effect than strict federalists would like).

    B (08fd8d)

  32. How about:

    Surplus military arms = Use these guildlines.

    States and locals don’t want to use federal guidelines, then give back your federal freebies.

    Gerald (88e5f0)

  33. Patterico, your post asks for a federalist argument. The first 2 posters gave you one. You then moved the goalpost to a request for a legal argument.

    I presume you work with police daily, know them, like them, etcetera. Maybe you’re a bit too close to this? They do have a tough job and we need them.

    However, conceptually this isn’t that difficult. The point at which this becomes unreasonable is the point at which innocent citizen’s lives are endangered in order to apprehend non-violent suspects. It is unnecessary and dangerous to both the police and potentially innocent civilians. In a case like that the police are creating a danger to innocents.

    It isn’t necessary to go to the mat to support something like no-knock raids to nab non-violent offenders in order to ‘support our local police’. Sometimes ‘support’ means keeping people from doing the wrong thing rather than defending them for doing it.

    The fourth provides that we should be safe in our homes from unreasonable searches. Breaking down someone’s door in the middle of the night with a troop of armed and armored men is unreasonable unless there is imminent danger to an innocent person’s life.

    That isn’t a difficult concept and it doesn’t handcuff law enforcement.

    The argument could just as easily be turned on its head: Explain why its necessary to perform no-knock raids to apprehend non-violent suspects. What qualifies an offense as being worthy of a no-knock raid? Felony? You can commit a felony by writing a hot check or shoplifting if the value is sufficient. Do those offenses rate a no-knock raid to apprehend the suspect? Why have the police knock at all, IE why not just have the police knock down the door and rush the house with weapons drawn any time they believe a person suspected of any crime whatsoever is behind it?

    Because it is dangerous and unnecessary and will inevitably result in the loss of innocent people’s lives, that’s why.

    Dwilkers (4f4ebf)

  34. Of course this is a case of fair weather federalism. Perhaps the good professor (or his supporters) can carve out some convoluted rationale for why he thinks it isn’t, how their advocating federal intervention isn’t at odds with their positions on other issues.. but to me, if it wasn’t fair weather federalism, a smart guy like you (and I’m not just sucking up, at least not now) wouldn’t have to ask for an explanation; the question of whether it was or wasn’t wouldn’t even have come up. I don’t know about you, but I’m not holding my breath waiting for the brilliant argument that leaves us “oh yes, I see your point, your advocating federal involvement is totally consistent with your other positions, how dumb we were not to have seen it”?

    Your question sheds light on the fact that there are really few people who consistently stand on the federalism principles they purport to believe in. I’m not counting too many states rights types who oppose no-knocks but want to leave it to the states to figure out…

    And for all the talk about no-knocks being targeted against non-violent suspects, perhaps your commenters can point me to the database which demonstrates that drug dealers (or users suspected of having enough drugs to make a raid worthwhile) don’t carry weapons?

    steve sturm (9e95c8)

  35. Patterico, your post asks for a federalist argument. The first 2 posters gave you one. You then moved the goalpost to a request for a legal argument.

    I did not move the goalposts.

    Let’s put aside the abstract question of whether one could provide a federalist argument on this issue without offering a legal argument.

    In any event, the first two commenters *did* offer a legal argument: the same one you offered, that these searches violate the Fourth Amendment.

    My response to that is: 1) actually, they don’t; courts have addressed the issue and said proper no-knocks are OK; and 2) to the extent that they do violate the Fourth Amendment, either generally or in a specific case, it’s a matter for the courts.

    I can see one possible area where federal legislation could be consistent with a federalist position: Prof. Reynolds’s suggestion that there be no legal immunity in connection with such raids. Maybe that’s all he means: an amendment to section 1983. If so, he could have been clearer; his post seemed to suggest something more: telling police how to conduct their business.

    Of course, that amendment would have the same effect. The raids — on drug houses, on murderers’ houses, on any houses — would stop in their tracks.

    Patterico (de0616)

  36. I’m seeing a lot of policy arguments here, which you guys can and should reserve for other threads.

    This is a thread for a discussion of federalism.

    In fact, you’re all proving my point about fair-weather federalism. That’s federalism that you stand by until it interferes with what you want to do on a policy level. Kevin Murphy seems to be engaging in that, due to personal experiences. And he’s not the only one.

    Patterico (de0616)

  37. #7

    Do you see a connection between the rise of no-knock raids, and The War That Shall Not Be Named? And so, by trying to legislate the one without addressing the other, you may end up with a “solution” that fixes nothing.

    I just think if we are going to say: the constitution doesn’t give the federal government power to clamp down on no-knock raids, then we should be consistent and start saying: the constitution doesn’t give the federal government power to ban substance X,Y,Z.

    Scott S (38ff57)

  38. Come now, patterico. This is not in good faith.

    Yes it is, and I don’t appreciate your saying it’s not.

    must we not stipulate that while such warrants may be legal, these sloppily, clumsily approved warrants are unconstitutional to the extent that they expand the sanction of state violence arbitrarily?

    If they’re unconstitutional, the courts can already take care of it.

    One last thing… what do you have against old people, that you want so dearly to see them executed by your jackbooted rampart division orc-troops?

    No response to that necessary.

    Patterico (de0616)

  39. Federal limits to the police powers of the states are an inherent function of the constitutional guarantee of a republican form of government to the citizens of the states, since such limits are an inherent feature of republican government.

    Is this supposed to be an argument from one who supports federalism?

    It sounds like a lot of words to say: the federal government can, just ’cause . . . it can.

    Couldn’t one argue in Schiavo that Federal limits to the powers of the states to determine the issues at stake in that case — including the evidentiary standards by which life-and-death decisions are resolved in court — are an inherent function of the constitutional guarantee of a republican form of government to the citizens of the states, since such limits are an inherent feature of republican government?

    The response to that needs to be something more than simple incredulity to be convincing. Take into account the arguments at the link I have given several times in this comment thread, regarding Due Process issues being at stake in the Schiavo case. Which they were.

    Patterico (de0616)

  40. […] I concur with the little devil. The solution to the problem of criminally negligent police raids is definitely local. And those solutions should involve putting the police involved in jail. […]

    SayUncle » Fair weather federalism (9b413a)

  41. I dunno, but it seems to me that many people who take a generally federalist approach think that it’s okay for the Federal government to, occasionally and judiciously, take action when the local/state governments screw up on matters of Constitutional rights — say, when all-white juries repeatedly find Klanners not guilty despite the huge weight of evidence, and the Feds charge the Klanners with civil rights violations.

    When it comes to this promiscuous and risky use of no-knock warrants (or the “soft knock” and dynamic entry to immediately follow, say), it seems to me that there are real and legitimate civil rights concerns — specifically 4th Amendment ones.

    It seems to me both that the promiscuous use of such search warrants and practices, along with rubber stamp (perhaps both actually and metaphorical) approval by compliant magistrates raises legitimate issues, and that there are several legitimate ways for the Feds to support the 4th Amendment, including federal legislation protecting citizens’ rights to be free from such “unreasonable” searches.

    If that’s “fair-weather federalism”, then hurray for fair-weather federalism.

    Joel Rosenberg (677e59)

  42. Are you seriously arguing that federal intervention into a state family law case, i.e. the determination of which party has the legal authority to make medical care decisions, is in any way comparable to the Federal interest in enforcing the 4th Amendment?

    Really?

    Yes, really.  Both involve matters that have traditionally been left to the states, but both have, in certain instances, produced egregious results that pissed off a lot of people, and understandably left some federalists wondering just how far that federalism thing really ought to go. And both groups of “fair-weather federalists” have at least some constitutional support for their position.

    First, let’s dispense with your phony Fourth Amendment argument. Yes, the Fourth Amendment prohibit unreasonable searches and seizures. No, that doesn’t mean Congress gets to make up a definition of its own as to what searches are or are not reasonable, nor is it clear Congress has any authority to legislate under the Fourth Amendment at all. The Fourth Amendment itself has no enforcement clause, and AFAIK the enforcement clause of the Fourteenth Amendment has never been held to apply to the Fourth Amendment. Even if I’m wrong about that, the enforcement clause would only allow Congress to pass laws aimed at ensuring compliance with the Fourth Amendment we have now; it wouldn’t allow Congress to make up a brand-new, bigger & better Fourth Amendment by statute. The existing Fourth Amendment says a warrant may be issued for probable cause. It doesn’t say it may be issued for probable cause, but only under circumstances where Congress, Dale Franks or even Glenn Reynolds consider reasonable. If you were to push this argument far enough, you’d end up with the absurd result that issuing a no-knock warrant for a nonviolent offense is constitutional (assuming that the probable cause requirement was met), but that actually conducting a search or seizure under that warrant is not.

    Now that we’ve dispensed with your frivolous Fourth Amendment argument, we’re left with one more possible constitutional basis for a federal law limiting the ability of the states to issue otherwise constitutional no-knock warrants. Suppose that Congress were to decide that no-knock warrants are so inherently dangerous that they should only be used to capture suspected murderers, rapists, and other extremely violent types. Anything else would inevitably result in innocents being deprived of life without due process of law. Whaddya know, the Fourteenth Amendment does say something about that, and since this is part of the amendment itself, and not a subsequent judicial power grab, there’s no question the enforcement clause authorizes Congress to legislate here.

    That’s a pretty decent argument, if I do say so myself. It’s also precisely the argument Patterico and I advanced during the Schiavo controversy. If you have a serious argument to distinguish the two cases – evidence that allowing cops to accidentally shoot innocents in a dynamic entry will result in an unconstitutional deprivation of life while allowing a self-absorbed putz to intentionally starve his wife to death based on flimsy evidence does not – I’m all ears.

    Xrlq (f52b4f)

  43. You write:
    … courts have addressed the issue and said proper no-knocks are OK; and 2) to the extent that they do violate the Fourth Amendment, either generally or in a specific case, its a matter for the courts.

    Sure. The courts have said that proper no-knocks are Constitutional. (They don’t get to rule on whether they’re good policy, okay policy, or horribly bad policy.) The questions, though, are

    a: whether a hypothetical widespread use of improper no-knocks is an issue that can, under federalist principles, only be addressed by local action in those various jurisdictions, or in the courts, and must not be addressed by the Federal government’s executive or legislative branches, and

    b: whether a hypothetical widespread use of lawful-but-unwise no-knock warrants collectively are a matter that, nder federalist principles, only be addressed by local action in those various jurisdictions, or in the courts, and must not be addressed by the Federal government’s executive or legislative branches.

    In your view, under federalist principles, is the only obligation/authority that the federal executive and legislative branches have to support in either or both of those sorts of thing is to emulate a pot plant — err, a potted plant?

    [Xrlq demolishes arguments based on the Fourth Amendment in the comment above. He advances the first non-frivolous argument I’ve seen yet for federal legislation. The only problem for cookie-cutter libertarians is that the argument applies with even greater force in the Schiavo context — since there is support for the Schiavo Due Process argument in the text of a Supreme Court decision (Cruzan — see my post linked in earlier comments for full details). — P]

    Joel Rosenberg (677e59)

  44. Not being a libertarian — cookie cutter or whatever term you’d care to dismiss them with, a la “fair weather federalist”* — I don’t have a problem at all in distinguishing between a hypothetical widespread misuse of no-knock warrants and doorkicking on one hand, and a dispute between family members about what the wishes of a disabled person were and who gets to make at best ugly decisions about whether or not to implement them, and/or to substitute their own judgment.

    As a moderate, I’ll note that it seems to me that individual courts tend to be much better about handling individual cases and instances brought before them than they are on broader matters.

    At worst: in an individual case, there’s only one case for them to screw up.

    Setting national policy by making decisions on a case-by-case basis is slow and ugly; failing to set national policy by not making decisions on a case-by-case basis is even worse.

    More generally, courts are utterly lousy at noticing or handling systemic police misbehavior — which court was it that noted that as soon as the SCOTUS ruled that police couldn’t search trunks in a routine traffic stop, trunks started magically flying open, from coast to coast?

    _________________
    * For a guy who quite reasonably asks that people accept that he’s behaving in good faith — and I do accept that; it’s one of the reasons I continue to recommend your blog — I think perhaps you might want to consider that many people who disagree with you are also behaving in good faith, and consider avoiding terms that imply otherwise. Up to you, of course.

    [Did you click the link in the post to see where I got the term? — P]

    ** Trick question — it wasn’t a court. It was Alan Dershowitz.

    Joel Rosenberg (677e59)

  45. IANAL. I’m not really making arguments, I’m asking questions, because I am ignorant.

    Here is the necessary clause:

    To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

    Would it be proper to conclude that this allows Congress to pass laws enabling the Fourth Amendment? Here is the Fourth:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    I don’t see an enforcemnt clause, either. But then I don’t see a clause which explicitly says that the Courts will enforce the Constitution anywhere in the Constitution either. I know that Marbury established that the Courts do have this power and this duty, and that this is what Article 3 means when it says:

    The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

    So why doesn’t Article I mean that Congress has the power to write enabling legislation when it says this:

    All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

    And why doesn’t Article II mean that the executive can use executive orders to enforce the Constitution when it says this:

    The executive Power shall be vested in a President of the United States of America.

    Of course, vs. Marbury, both legislation and executive orders are subject to judicial review. But may the Congress or the President define certain no-knock warrants as unreasonable as part of their duty to uphold the Constitution?

    Yours,
    Wince

    Wince and Nod (966b00)

  46. [Did you click the link in the post to see where I got the term? — P]
    Actually, no. That said, I had read that piece way back when, and read Glenn’s stuff on the matter from time to time; I was pretty confident (and, in this case, correct) about who specifically and generally what you were talking about.

    That okay?

    My own take — I speak for me, not for him, of course — is that it isn’t hypocritical (or “fair weather federalism”) to argue that there are legitimate limitations on federal power, but that a given situation is one that falls on one side of the line or other.

    I think it’s bad logic and bad policy — and in some cases (I’m not pointing a finger at you) bad faith — to argue that because somebody who takes a generally federalist approach finds situations where federal action is a good idea, they’re “fair weather federalists” because they don’t always (or even often) find federal action legitimate.

    I’m reminded of Breyer’s (I think, fair) criticism of Scalia’s formulation of originalism (which I’ll, fairly or unfairly, sum up thusly): wording matters, context matters — but so does the purpose and the consequences.

    All in all, it seems to me that you’re accusing Glenn of not being a rigid, unthinking, Federalist puritan; I think you’re right. I also think that’s a good thing.

    (I’m not, by the way, as optimistic as you are about the abilities of removing immunity from lawsuits, as Glenn suggests is a good idea, to accomplish the same thing as active regulation. think it’s a good thing to do; I’m skeptical of how effective it would be.)

    Joel Rosenberg (677e59)

  47. Gerald at 11/29/2006 @ 3:39 am wrote:

    States and locals don’t want to use federal guidelines, then give back your federal freebies.

    Bingo!

    Crickets will chirp a long time before it happens, but bingo anyway.

    Occasional Reader (ce1732)

  48. Patterico wrote:

    I’m ignoring that guy and listening to the guy in the angel suit, who advises me to ask this polite question of Prof. Reynolds: can you tell me how your proposal squares with federalist principles?

    Prof. Reynolds replies here.

    The lede:

    PATTERICO ACCUSES ME OF FAIR-WEATHER FEDERALISM for supporting Congressional legislation to rein in no-knock drug raids.

    That’s silly. …

    Occasional Reader (ce1732)

  49. […] VERY good question: If it is a matter of traditional jurisprudence that 100 guilty men go free rather than 1 innocent person be convicted, how much more so is it important that 100 druggies dispose of their stash rather than an innocent citizen be killed? […]

    Strangely Silent: De Doc… · Good Question… (78dcc8)

  50. Yes it would amount to telling them how to do their job. It would tell them that they are not “crown agents,” but rather just peace officers who are as accountable for how they use force as any citizen is.

    I am entirely unsympathetic to them because while I support eliminating most restrictions on how people use force in self-defense, including for the police, I see no reason why anyone should be immune to the scrutiny of the legal system.

    But then again, a lot of people would be more sympathetic to the law enforcement community if the average cop and prosecutor had a “shit happens” attitude toward a homeowner who accidentally shoots a cop in a botched raid. Instead, they’re vindictive and say “you should have known better” while saying that the cops shouldn’t have. Which is all terribly ironic since no knock raids are intended to catch people at a time and state of mind when “knowing better” is psychologically unlikely.

    MikeT (b4ba83)

  51. “If you have a serious argument to distinguish the two cases – evidence that allowing cops to accidentally shoot innocents in a dynamic entry will result in an unconstitutional deprivation of life while allowing a self-absorbed putz to intentionally starve his wife to death based on flimsy evidence does not – I’m all ears.”

    -Xrlq

    I don’t have a technical argument for that post, Xrlq, but I would say that there’s a difference between being *actively* causing a death (as in the case of a shooting, accidental or otherwise) and *passively* causing a death (as was the case with Schaivo). Michael Schaivo did nothing to prevent his wife from pursuing life, liberty, and the pursuit of happiness to the best of her ability. He put recovery into her hands, and if she had, for some reason, recovered, I’m sure he would’ve been rejoicing with everyone else.

    The problem was that she was, essentially, dead.

    The difference is that in the case of a death by dynamic entry, there are outside forces at work that take the ability to pursue life, liberty, and the pursuit of happiness out of the hands of the individual, instead of placing them *solely* in the hands of the individual as was the case with Schaivo.

    Leviticus (43095b)

  52. Patterico if you have an abuse of authority by local officials and it’s systemic, then sadly the feds may be the only one who can address the issue.

    Thomas (7dffc6)

  53. BTW, Reynold’s lame explanation for why this post is “silly” consists of two arguments Reynolds himself does not apply with any consistency, to wit:

    1. The federal government has every right to use the 14th Amenmdent to prevent states from depriving citizens of life, liberty or property – unless such citizens happen to be Terri Schiavo.
    2. When the federal government provides the goods, the federal government has the right to impose conditions on how they are used – unless the “goods” in question are federal funds for scientific research.
    Xrlq (f52b4f)

  54. #53

    Honest questions (ie, not a trap, I don’t know the answer):

    1. Can any third party ask for federal intervention when person A wants to remove life support from person B, and A has the legal power to make the request?

    2. Given that they act as if they do, does the federal government have valid Constitutional power to subsidize stem cell(or any other kind of medical) research? If so, what article does this fall under?

    Scott S (38ff57)

  55. 1. In theory, sure. In practice, probably not, or at least not successfully. You rarely get the kind of divide we saw in the Schiavo case. Suppose the Schindlers, the Schiavos and everyone close to both families agreed that Terri had intended to be allowed to starve, but Randall Terry appeared out of nowhere arguing that for all he knows, maybe she didn’t. His case would be tossed out in a hurry, and rightly so.

    2. Yes. Congress has an enumerated power to tax and spend “for the general welfare.” It’s part of the first clause of Article I, Section 8, the same section where most of Congress’s other enumerated powers (including the Commerce Clause) are found.

    Xrlq (f52b4f)

  56. But humor me. Could you explain to me what federal constitutional right is being violated by lawful no-knock warrants signed by a neutral and detached magistrate? That isn’t as obvious to me as it apparently is to you.

    Well, to an originalist, the required “warrant” would have to have some relation to the understanding of warrants and their service back at the Founding. This is where you get “knock and announce”, I’m pretty sure. In this line, an originalist might find there is no such thing as a lawful no-knock warrant.

    Now, we seem to be well past that point, but the limited abrogation of the “knock and announce” rule, viewed as a modification of a Constitutional Right could well be subject to federal regulation, although not by the same originalist.

    Kevin Murphy (805c5b)

  57. I’m no lawyer, but I’ll try and answer Patterico. I don’t see that it’s possible to use statutory denial of immunity and allowance of liability as a Federal response to limit the abuse of no-knock raids, because that is not an enumerated Federal power. Oh, I’m sure that the Congress could make up something out of the vapors and emenations of some power, as it does now with the Commerce Clause for every private activity in America. But this would be a bass-ackwards way of governance, and abusive of our Federal system.

    Fooling around with immunity and liability doesn’t address the clear Federal reponsibility to secure our Fourth Amendment rights, by defining what is “reasonable”.

    I do think that the Federals could, within their Fourth Amendment rights-securing powers, statutorily define reasonable no-knocks to say that the only time the police can perform these if the people in the home are known by evidence to be armed and dangerous; that if the police knock first they have an expectation to be met with a hail of bullets either before or after entering; or that some other person’s life in the house will be in imminent danger from the armed and dangerous persons were a warrant to be served in the polite way.

    Notice that destruction of evidence is not in that definition. Possession in any quantity of drug or other contraband does not meet the requirement for known armed and dangerous.

    The crimminal justice system types say they have to get that evidence before it is destroyed, so they can lock up the perp. And I say that’s not the only way to prevent and stop crime.

    Abusive no-knocks are an imbalance between the continuous tension in police work of preventing crime, and catching and punishing crimminals.

    So, if we know the perp is going to flush the drug evidence every time we come with a warrant, we stake out the perp, and we come with a warrant every time a drug deal goes down, a weapon goes in, etc. If the perp can’t do business because he’s flushing all his product, and he knows he’s under continuous surveillance and search, and all his neighbors see the cops are on to him, the perp is either going to get out of the drug business because it’s unprofitable, or get out of Dodge. Now you tell me, which is better for we the people: put the perp out of business so he can only go legit, or catching him and locking him up?

    The answer of course is, it depends. But the government crimminal justice system, like all bureaucracies, gravitates to the certainty and job security of catch, convict, and imprisonment: measurable, tangible results; while we the people are better off if crime is first heavily discouraged. That’s that whole business Giuliani and Bratton started in New York: discourage crime by hitting the perps for every little infraction. With the current NY crime statistics, apparently it works, and everybody in New York is enjoying the benefits.

    Unfortunately, I don’t see the Federals rousing themselves from their slumber to do anything anytime soon. It’s first going to take a lot more legal roadkill, and a national groundswell of public outrage, in order to overcome the powerful and entrenched CrimJust bureaucracies. A few (maybe)innocents a year getting in a 3AM shootout with SWAT police in their own home just ain’t gonna do it.

    John A. Fleming (29f726)

  58. But humor me. Could you explain to me what federal constitutional right is being violated by lawful no-knock warrants signed by a neutral and detached magistrate? That isn’t as obvious to me as it apparently is to you.

    It seems to me that the problem isn’t with no-knock warrants per se, but rather with the specific manner of the entry and search itself, i.e., militarized “dynamic entries” in cases where it’s only arguably appropriate. There’s a pretty big difference between two or three detectives kicking in your door to execute a search warrant, and a SWAT entry team coming in with flashbangs and machineguns to do the same. My impression is that the manner-of-search question has largely been left by the courts up to the discretion of law enforcement — though admittedly I’m just 2L, am not fluent with the caselaw, and can’t research on Westlaw from my day job. Has this issue been litigated in the context of no-knock searches?

    I’d argue that the more law enforcement resembles a gang of ninja-suited stormtroopers in appearance and behavior, the greater the likelihood of a screwup resulting in unnecessary damage to property or injury to persons; and thus the amount of force used to execute a warrant, in light of all the circumstances of the particular case (including the nature of both the offense and the offender, as well as the overall tactical situation such as the presence or absence of closely adjoining homes, neighbors, etc.) ought to bear on the reasonableness of the search for Fourth Amendment purposes.

    For what it’s worth, though, while I have enormous respect for Reynolds, I agree with you and XQRL that he’s not a consistent federalist.

    BC (2b2318)

  59. Er, that’s XLRQ. Him. That guy.

    BC (2b2318)

  60. I did not move the goalposts.

    Yes, you did. First you asked for an “argument”, then you later changed it to a “legal argument”. In short, you basically want to exclude everybody who can’t put forward a legal argument. Neat trick, but you’ve been caught.

    [OK. You “caught” me demanding a legal answer to a legal question. But hey, if you think you can give me a relevant answer to the question that is somehow not legal in nature, go ahead. But I’ll make you a bet: any such argument will end up being a policy argument instead of an argument addressing the actual concept of federalism. Hint: an argument like “WE REALLY HAVE TO DO THIS ON A FEDERAL LEVEL BECAUSE IT’S REALLY IMPORTANT!!!!” is not an argument made by a federalist. It is, in fact, an argument typical of a *fair-weather* federalist. — P]

    Steve Verdon (94c667)

  61. I havent seen an argument yet that makes the legal case that the use of no-knock warrants violates the U.S. Constitution.–Patterico at 9:23 PM 11/28/2006

    In any event, the first two commenters *did* offer a legal argument: the same one you offered, that these searches violate the Fourth Amendment.–Patterico at 6:47 AM 11/29/2006

    Color me confused, which is it, nobody has made a legal argument or they have? You seem to be arguing both sides here.

    [Not every legal argument is a *valid* legal argument, as any judge will tell you. The next commenter expresses it well. — P]

    Steve Verdon (94c667)

  62. The difference between an argument put forward and one which makes the case seems plain to me.

    The chewbacca defence is an obvious example of an argument which doesn’t make the case.

    B (e8227e)

  63. My “snark” devil is begging me to make a comment asking if Patterico is aware that the 4th Amendment is in the FEDERAL Constitution.

    But I won’t.

    Instead, I’ll say that Federalists recognize that some rights ARE in the province of the Federal Government, and Amendments 1-8 are among them.

    [You don’t even want to know what my snark devil says about this comment. Following my angel, I’ll ask you to review the comment thread, and explain to me how properly obtained no-knock warrants violate the 4th Amendment. Hint: they don’t. (Improperly obtained ones are already banned.) — P]

    Dave Wangen (6001a6)

  64. It seems ot me the entire point of the Constitution was to define the limits of Government and to assure all non-enumerated rights remain with the individual.

    I am confused as to why some would assert that a legislature could not willingly afford even greater protection from Government than enumerated 200 + years ago. If our Congress wishes to mandate a higher threshold for police action it is funding, I fail to see any rational argument against it.

    I do understand that the Federal Congress may not statutorily define police tactics for Government(s)who provide for their own lawful protections.

    But de facto, if Congress “just says no” to dynamic entry, individual liberty is enhanced and many, many, agencies will end the practice. For the “Hillsdale’s” who would renounce Federal funding of police protection, the local citizenry can decide if it is a price worth paying. Hmmmm…federalism!

    Ed (2b0094)

  65. The elephant is, very much, still in the room. In fact the elephant is getting bigger, and it is evident that it must be acknowledged. Please P, can we mention the elephant.

    RJN (e12f22)

  66. Does it have anything to do with federalism?

    Patterico (de0616)

  67. No, just elephants. I hear some elephants are involved in commerce, though, and others have even been known to cross state lines.

    Xrlq (1e3b05)

  68. Some elephants are used for medicinal purposes.

    RJN (e12f22)

  69. Some elephants cross international borders: http://www.brownsvilleherald.com/ts_more.php?id=73201_0_10_0_M

    (Sorry for the old-fashioned URL. The spam filter bounced my comment when I used the link function.)

    DRJ (0df497)

  70. Is anyone ever going to mention the LEAA, the FBI fingerprint base, and I hear there’s even a DNA base and they are considering a “ballistic print” base? Just who taught the local yokels paramilitary tactics and gives them tax-free automatic weapons? The States got into bed with the Federal government in the Roaring Twenties and their marriage has only gotten stronger since. And whomsoever John Dillinger hath joined together let no Federalist rend asunder.

    I suppose that the dominant partner could scold the doxie for her excesses. (Sarcasm.)

    nk (50d578)

  71. DRJ at 11/29/2006 @ 8:10 pm wrote:

    Some elephants cross international borders:

    Priceless!

    Occasional Reader (537649)

  72. Is anyone ever going to mention the LEAA, the FBI fingerprint base, and I hear there’s even a DNA base and they are considering a “ballistic print” base?

    No, apparently at this point people are mentioning nothing but elephants.

    Patterico (de0616)

  73. Patterico, you’ve said the courts have ruled no-knock raids are okie dokie, but I can’t find where you’ve linked up whatever ruling you’re talking about, leaving me to dig around for whatever I can find that’s relevant – and since I’m not a lawyer that puts me at a disadvantage to say the least. The only things I can quickly google up refer to exclusionary rulings in reference to violation of rules about no knock searches.
    _______________________

    In any case, the federalist argument here is simple.

    Federalism is a system by which a group of states agrees to assemble in a confederation and form a central government to perform some functions for all. Local governments are reserved the right to perform basic services like policing, fire protection schools, etcetera. The central government is responsible for defense, printing money, negotiating with foreign powers and – at least in the case of the US – guaranteeing the fundamental rights of citizens.

    A fedralist wouldn’t argue, then, that its inappropriate for the US to assemble a military. Nor is it against federalist principles to propose that the federal government take action when it is perceived that citizens are being denied their fundamental rights as guaranteed in the US constitution in a routine manner by a police proceedure.

    It is not fair weather federalism to argue the federal government has an interest in the fundamental enumerated rights of citizens of the United States. That is a simple recognition of the line that separates federal and state responsibilities.

    The right to be free from unreasonable searches isn’t an implied right, it is one of those things thought so important by the framers that it is an enumerated right, one specifically listed in the constitution.

    Now, if the courts have ruled that its A-OK for police to go around breaking down doors willy nilly whenever they feel like it, there’s obviously nothing I or anyone else can do about that. But that isn’t an argument, and if all there is to hang one’s hat on is the court saying its ok don’t expect me to be impressed. It is the SCOTUS, after all, that fails to understand what “Shall Make No Law” means.

    The framers simply could not have made that more clear. What should they have done? All caps and bold? If the courts cannot understand that plain language they are hardly a good source for debating material.

    Dwilkers (4f4ebf)

  74. The framers simply could not have made that more clear. What should they have done? All caps and bold?

    I’d settle for a statement in 10 point pica to the effect that (1) the Fourth Amendment was intended to apply to the states, (2) Congress has the powered to pass legislation enforcing it against the states, and (3) in so doing Congress also has the power to re-interpret the Fourth Amendment to require what the courts have already held it does not require.

    Of course you can argue that (1) and (2) were taken care of by the Fourteenth Amendment, as interprted by the courts, and who knows, maybe they’ll reach conclusion (3) as well (in my view, they should). However, you said the framers, not the courts.

    Xrlq (f52b4f)

  75. It’s not that no-knocks are per se unconstitutional. Showing THAT is way more strenuous than necessary, and theorietically off the mark.

    The real devil has been (a) in the deference to law enforcement for alleging the factual basis for the warrant, (b) the good-faith exception where errors are made (somewhat in principle, but more in its loose application), and (c) in the wide area of convergence between the two.

    Those problems are the result, mostly, of federal jurisprudence. What we need is a good old pendulum effect on 4th A. warrant requirements.

    …AND a rollback of the drug laws (apologies to P).

    biwah (2dcf66)

  76. […] In a FURTHER UPDATE to this post, Glenn Reynolds has further responded to my previous post about federalism and federal legislation relating to no-knock warrants. […]

    Patterico’s Pontifications » A Further Response to Prof. Reynolds (421107)

  77. …AND a changing of the guard in countless state courts, but guidance from the fed judiciary will decide the extent of any such change.

    biwah (2dcf66)

  78. Well, while you seem to want only a legal answer to a legal argument, your own argumentation often — in this and elsewhere — crosses into issues that go beyond what the technical, legal arguments are.

    All in all, I think that’s a good thing; I think it’s important to make distinctions between legal and policy arguments, and honor the distinctions, but I think it’s futile to try to put up a Chinese Wall between them.

    Joel Rosenberg (677e59)

  79. [Not every legal argument is a *valid* legal argument, as any judge will tell you. The next commenter expresses it well. P]

    Your additional goal post moving is duly noted. Is this something they teach lawyers or something? After all in neither of the passages I quote used the word “valid”.

    But your site, so feel free to move those goal posts all over the place.

    [I already explained that, while I believe any on-point answer will have to be legal in nature, I will consider non-legal arguments. So if I moved the goalposts (which I don’t concede), then I moved them back. Now you’re arguing that when I ask for an argument, it’s “moving the goalposts” to demand that it be valid. Fine. I’ll permit you to waste all our time with a *non-valid* argument — just so nobody can say I’m MOVING THE GOALPOSTS! — P]

    Steve Verdon (4c0bd6)


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