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