Patterico's Pontifications


A Further Response to Prof. Reynolds

Filed under: General — Patterico @ 6:52 am

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.

I have two points.

First, Prof. Reynolds appears to deny that the link I provided shows that he had argued against federal legislation in the Schiavo case, citing concerns about federalism. But if you scroll down to the third post at the link (or simply click on this link to go directly to the relevant post), you’ll see Prof. Reynolds favorably quoting Ryan Sager to this effect:

[I]t was in this last week that the Republican-controlled Congress made it clear that it sees no area of American life — none too trivial and none too intimate — that the federal government should not permeate with its power.

It can all be summed up in two words: steroids and Schiavo. . . .

Putting aside the tangled facts of the [Schiavo] case for the moment — which include some bitter family history and selective science on both sides — the driving question here should be: Does Congress have a role?

And when it comes to a family dispute over a painful medical decision, one which at least 19 judges in six courts have already adjudicated, the answer must be a resounding “no.”

The forums for matters such as the Schiavo case are state courts, upholding state laws.

To this, Reynolds added:

A while back, I wrote about the problem of “fair-weather federalism,” but judging by the past week things look to be getting much worse.

I think it’s fair to cite this post as a clear example that Prof. Reynolds decried federal legislation in the Schiavo case as an example of “fair-weather federalism.”

Instead of referring to this post, Prof. Reynolds quoted a different post with the group, and argued that that post “wasn’t really a federalism argument as such.” True enough, but the one immediately above it was. The fault is at least partially mine, as the link I had provided covered multiple blog posts, and I failed to provide a specific link to which post I was talking about.

My second point is to respond to Prof. Reynolds’s argument in which he tries to turn the tables, and say that if he is being inconsistent, then I must be as well:

At any rate, doesn’t this go both ways? That is, isn’t Patterico inconsistent to have supported the Schiavo legislation while regarding Congressional legislation over no-knock raids as posing troubling federalism problems?

Not necessarily. The reason is that in defending the Schiavo legislation, I have fleshed out in great detail why I believe the Due Process Clause authorizes federal intervention. But having read Prof. Reynolds’s post, I still don’t understand the argument that no-knock raids — even looking only at ones that go bad — violate the Due Process Clause.

The due process argument in the Schiavo situation is, I think, fairly clear-cut. As I have argued, substantial authority (including dicta in Cruzan) suggests that, under the Due Process Clause of the Federal Constitution, cases like the Schiavo case must be decided according to the “clear and convincing evidence” standard. I believe that it was appropriate for Congress to provide jurisdiction to the federal courts to ensure that this federally mandated standard was properly applied.

Maybe there is an equally valid due process argument to be made that no-knock warrants violate due process. But I don’t think Prof. Reynolds has really fleshed out the argument, and it’s not intuitively obvious to me where there is a due process failure — at least in cases where police have a valid warrant.

After all, to obtain a valid search warrant, officers must provide facts that they believe in good faith to be true, showing probable cause to search a residence, and obtain a signature from a neutral and detached magistrate. If there is a no-knock provision, they must provide facts that convince a magistrate that there is a reason that the usual knock-and-announce requirement must be dispensed with.

That doesn’t immediately strike me as a failure of “due process.” It sounds like a fair amount of process — and exactly the amount that is due to the homeowner under the Constitution.

If the raid later goes bad, and someone gets shot, that should probably motivate a discussion of the policies or tactics used. But I don’t see why we must necessarily conclude that there has been a “due process” violation. And under principles of federalism, it seems to me that this discussion — relating as it does to local police matters — should take place on a local level.

In any event, I agree with Prof. Reynolds that we share considerable common ground: we agree that stripping immunity in a section 1983 case is an act that is well within Congressional authority.

P.S. Instapundit’s post has my favorite phrase in blogging history. Speaking of me, he says: “I have great respect for his abilities as a blogger . . .”

I’m not saying that I would ever print out a phrase from a blog post, isolate a single phrase, blow it up to poster size, laminate it, and hang it on the wall. That would be ridiculous.

But if I ever did that with a phrase from a blog post . . . that would be the one.

11 Responses to “A Further Response to Prof. Reynolds”

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

    Patterico’s Pontifications » Libertarian Calls for Federal Oversight of Local Police Techniques; Patterico’s Devil and Angel Dispute How Best to Respond (421107)

  2. Well, he should respect your abilities — and accomplishments — as a blogger; you’ve made your bones more than many times just in terms of the LA Times.

    (If they had a working clueserver, they’d at least try to hire you as an ombudsman. They don’t.)

    Joel Rosenberg (677e59)

  3. Patterico, let me give a layman’s [i.e. non-lawyer’s] view what is and isn’t federalism.

    Using the entire power and attention of Congress to interfere in an sad and complex inter-family decision about the medical wishes of a severely injured woman that had been already been thoroughly adjudicated by state courts. That doesn’t seem to most federalists I know to be an appropriate use of federal power, even if they agree with the goal.

    Congress acting to raise barriers to the use of police power to try to stem the tide of a widespread multi-state pattern of innocent American citizens being killed by police officers. That seems to be an appropriate use of federal power, especially considering that federal laws and policies, and federal court decisions, have created the environment that is leading to the problem.

    Again, I’m not a lawyer, but I think I’m still allowed to be a ‘federalist’, and I suspect my attitudes are fairly reflective of most who think of themselves as federalists.

    [That’s a very thoughtful and well-expressed comment. Thanks. The answers depend on how you phrase the issues. You have phrased them in a way that makes federal intervention seem reasonable in the no-knock warrant situations, and unreasonable in the Schiavo case. But let me offer another way to characterize the law in Schiavo. It simply provided a limited role for the federal courts to review the decisions of state courts, to ensure proper application of a standard of proof required by the U.S. Constitution. That’s not necessarily an “interference” as long as federal standards have been met; at worst, it provides further delay in a case that had already been delayed for years. IMHO, that’s all Congress actually did. In the no-knock warrant situation — depending on the federal remedy sought– I could recharacterize the issue to make federal intervention sound unwarranted: the issue is about whether the federal government can tell local police how to do their jobs, in the absence of any constitutional violation. — P]

    Lou Wainwright (f21efc)

  4. It sounds like a fair amount of process — and exactly the amount that is due to the homeowner under the Constitution.

    Maybe so. But, as another non-lawyer, I still have trouble with it.

    The problem is that there is no active advocate for the homeowner’s side in the system. The police are actively advocating the investigation and/or entry; the magistrate is supposed to be neutral. There’s no balancing force of opposite polarity, if you will.

    Such an opposing force might argue, for instance, that if the quantity of drugs is small enough to be flushed before a more pacific entry can be managed, the charges and convictions possible as a result do not justify such “active measures.” It’s impossible to kill a plant by snipping off a leaf at a time. Targeting the smallest amount legally definable as “dealing” does not address the problem in any meaningful way. We already have an elegant sufficiency of people doing five-to-ten for possession of an ounce of grass, so many that there’s no room in the lockups for car thieves and muggers even if the police had time off from chasing such “dealers” to catch them.

    And yes, it’s ludicrous to expect the cops to call in counsel for the intended target to make such arguments. That’s not an endorsement of the existing process, though, it’s pointing up the limitations of it. There has to be some counterbalance, and the only thing I can think of is condign punishments for cops who screw it up. A week’s suspension with pay is not “condign”.

    My own proposal — that, as part of the reform, police engaged in “no-knock” raids be forbidden to wear uniforms with pockets — is perhaps overcynical. Or perhaps it isn’t cynical enough.


    Ric Locke (342fcc)

  5. like the chancellor’s foot, “due process” is one of those malleable concepts subject to personal interpretation.
    i believe no-knock raids are an unreasonable search and seizure contrary to the fourth amendment, but if proper procedures were followed to get the warrant, it seems like all the process constitutionally contemplated was accorded.
    but that’s only if proper procedures were followed. if the cops getting the warrant knew at the time that the affiant was lying, that’s arguably not due process, but no process at all.
    maybe the fourth amendment should have had an enforcement clause. maybe five sensitive justices will percieve an implied enforcement clause emanating from its penumbra. congress often addresses matters previously thought to be strictly local; there’s only one way to find out.

    assistant devil's advocate (be81ce)

  6. Patterico,

    I think you are correct that Prof. Reynolds seems inconsistent on federalism when you compare his position on the Schiavo case with the no-knock issue. I certainly have my share of inconsistency on issues that I care deeply about and, as a regular reader of Instapundit, I think it’s fair to say that Prof. Reynolds is against – some might even say passionately against – no-knock raids.

    Emerson said that “A foolish consistency is the hobgoblin of little minds.” The hard part is to tell the difference between foolish consistency and wise consistency. Perhaps it’s easier to view philosophical consistency as foolish when we care passionately about something. But when emotions are high, consistency is usually the wise choice.

    DRJ (0df497)

  7. I agree with Ric: “Targeting the smallest amount legally definable as “dealing” does not address the problem in any meaningful way.”

    Is the following scenario “warranted” ???

    It’s hard to even write this because the aftermath of a “warranted no-knock entry” can be life altering in itself. What has happened to this woman is dispicable.

    Recently, an online acquaintance told me what happened to her. She is an elderly mother disabled by MS. She was awakened around 6 a.m. by noise of her door being busted. While still in her bed and barely awake she was being handcuffed. After finally realizing they were cops [some wore ski masks] she was told they were looking for her son. In between gasps for air from sheer fright..she tried to tell them that she couldn’t stand up because she had MS. The cops were not sympathetic – but finally believed her and allowed her to use the rest room while ramsacking the home.

    The handcuffed the son who was in the next room o and began looking for pot or other drugs. What they found was quite minimal amount of pot – but the son was arrested and taken in.

    During the search, the mother’s rare book collection was being thrown about – and the officers were making comments about the criminal nature of some of the titles, inferring that the mother was certainly street-smart in the criminal world. The home was left in total chaos and certain belongings were carelessly damaged.

    Since that morning, the mom has had to bail the son, pay for legal costs etc…….then the worst part. After being a share owner in a co-op for 30 years, she was served with an eviction notice based on the son’s arrest nd the “threat to other residents” [of course this is without proof of conviction]

    The stress that followed this whole disaster has exacerbated her medical condition – but now, her life is filled with legal fees, court dates, hearings etc. because she is now being forced to protect herself from the loss of her home.

    This type of police activity may be necessary in some criminal activities – but c’mon, is our government in more fear of pot users than big drug rings or terrorists?

    Or – do they take down the little guys simply because they can.


    hu-nose (8b9016)

  8. DRJ – had Reynolds not protested as forcefully as he has, I would agree with your post. He also accused Patterico of the same “crime” without substantiation.

    Besides, I love a vigorous, honest, and respectful debate on such questions. Lord knows I won’t find such often.

    Ed (2b0094)

  9. hu-nose,

    You described a typical search pursuant to a warrant. At least they did not rip up the mattresses, smash holes in the drywall or smash the toilet tank. Wanna bet that one of the reasons the co-op is mad is because they jimmied the building’s entrance door?

    They seem to be lucky that there were no missing items from the home that did not appear on the inventory sheet. Would you believe that a policeman could be so low as to pocket a roll of postage stamps and a Tekna light? It’s happened to one of my clients.

    nk (77d95e)

  10. What? The great Reynolds wrong? No. You don’t know who he is. Worse, you don’t know who he wants to be, which is the all knowing all powerful final authority on dam near everything, especially all things in TN. He long ago stopped linking to me because, he says, in scanning comments in all blogs he discovered that I called him an asshole on one. I have no idea if I did or not, but it hasn’t affected my traffic (1.6 mil) in so far as I can tell. Can you believe this guy combs through comments on blogs to see if anyone dare say something that might offend him? That’s who he is.

    Howard Veit (28df94)

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