May 31, 2021 at 9:16 p.m.
Supporting law enforcement and the constitution
Supporting law enforcement and the constitution
The administration must be smarting over this one, for any time these days that the court spanks you with the paddle of a unanimous decision - it was 9-0 - you know you've taken a whipping where it hurts.
The case was a victory for gun owners: The court ruled against police who had entered a man's home and seized his handguns without a warrant or any exigent circumstances. But it was also a win for much, much more.
It was a win for the sanctity of the home, and a setback for the modern Democratic Party's police state agenda.
What is shocking about the case, besides the fact that the decision was unanimous, was the Biden Department of Justice's (DOJ) specious claims about warrantless entry. In its brief before the court, in fact, the DOJ argued that the Fourth Amendment carries no presumption that a warrant is required but turns on overall reasonableness.
Warrants implicate probable cause, of course, and as such are the anchors of the Fourth Amendment's protection against unreasonable search and seizure. Take away the anchor and the protection floats easily away.
In the traditional view, a warrant is presumed to be required, and warrantless searches are presumed to be unreasonable, and any decision to proceed with one must be based on compelling reasons that it would be unreasonable, unsafe, and irresponsible to wait for a warrant. That should be, by its context and definition, next to never - exigent circumstances. In other words, an emergency.
The scope of exigency has been relentlessly expanded through the years, chipping away at the presumption that most searches are unreasonable - which is why there is constitutional protection in the first place, by the way - but the Biden administration would simply dispense with the presumption altogether.
For if the starting presumption is not that warrantless entry is illegal - an action that violates the sanctity of home and curtilage except in criminal cases and in the rarest of civil instances - then the starting point must be that warrantless entry is neither legal nor illegal, not a threatened liberty demanding constitutional protection but merely a benign question of subjective determination, not clouded or bound by the specter of oppressive government conduct.
In civil cases law enforcement would only need to prove that a reasonable choice was made - not that there was probable cause of an immediate emergency that required the violation of the home but a much lower bar that officers need only make a reasonable decision that community caretaking is necessary.
The stigma of warrantless entry is removed, replaced by the wisdom of "reasonable" authorities.
Consider the example in United States v. Quezada. In that case, as the ACLU, the Cato Institute, and the American Conservative Union pointed out in a joint amicus brief, an officer went to the homeowner's residence to serve a protective order. Upon knocking, their brief states, the door became ajar, a mightily convenient circumstance. Anyway, the officer called out and no one responded, but because lights and the television were on, the officer entered the home.
And there was the defendant, snoozing on the couch with a shotgun, only to be rudely awakened and arrested for possessing a firearm as a felon. The Eighth Circuit found that the search of the home was OK based on a "reasonable belief" that "community caretaking" was necessary.
"The Eighth Circuit's holding essentially finds it reasonable for officers to enter a residence any time a door is not properly closed and the lights are on, but no one is (or rather, appears to be) home," the brief stated.
So that's what the steady expansion of exceptions to the Fourth Amendment gets you, and it has only accelerated since that decision in 2006. As the Constitutional Accountability Center puts it, Biden's current position would give police officers a sweeping new power to invade the home even when there has been no criminal wrongdoing.
In its argument before the court, the Biden administration proclaimed that the "touchstone of the Fourth Amendment is reasonableness" and that the warrant standard shouldn't apply to noncriminal investigations. In other words, when the government's focus is not the "competitive enterprise" of tracking down criminals but is rather community caretaking, the probable cause standard should be thrown to the wind and common sense should prevail.
"The ultimate question in this case is therefore not whether the respondent officers' actions fit within some narrow warrant exception, but instead whether those actions were reasonable," Biden's DOJ argued.
In his concurring opinion, justice Brett Kavanaugh shredded that analysis. While the touchstone of the Fourth Amendment was indeed reasonableness, he asserted, the test of reasonableness proceeds from the starting point of the warrant requirement; it does not replace it as the starting point.
In the first instance, the question is whether entry is allowed without a warrant - to do so is presumptively unreasonable unless a compelling exigent circumstance exists. In the second instance, when the starting point is simply a balancing test for reasonableness, the question of whether an exigent circumstance exists has disappeared and all that is considered is the officers' good intentions, common sense, and instincts.
The distinction is all important. In the first instance, walking through a slightly open door when no one answers your call, even though no apparent emergency exists, is an illegal home invasion; in the second analysis, it's just good community caretaking.
The problem with that kind of "good community caretaking" is that it is nonconsensual and eviscerates the notion of privacy. In this kind of community caretaking, the government decides what is good for us, and it also decides when the welcome mat is out.
It should be stressed that support of a strong Fourth Amendment is not anti-law enforcement. Our support for police in today's society is unequivocal. The truth is, the vast majority of police support civil liberties and the rule of law and are eager to protect them.
There are some bad apples, as there are in any human enterprise, but the left's assault on such bedrock rights as the Fourth Amendment also makes it harder for police to do their jobs.
For example, when an officer is standing at an open door and calling out and receives no answer, what should the officer do?
Well, under the Biden standard - it's OK to walk inside if the officer thinks it reasonable to do so - it's harder for that officer to make a good call than if the standard was that the officer can't go in unless he or she has compelling evidence and truly believes there is an exigent circumstance that makes waiting for a warrant impossible.
Finally, one doesn't have to dig very deep to unearth all the ways President Joe Biden, his administration, and the Democratic Party are wedded and beholden to the security state and its cravings for unbridled police power.
Oh sure, Biden is good at performative radicalism when it comes to assigning institutional racism to law enforcement. There is racism in the ranks of police, to be sure, but meeting with George Floyd's family on the anniversary of his death is nothing more than a feel-good opportunity when you consider the substantive record that forms the ground beneath the photo op.
Both Biden and U.S. Rep. Adam Schiff (D-New York) have aggressively called for a new War on Terror, to cite just one example, this time against so-called domestic terrorists (read "conservatives" and anybody else who disagrees with them), and that means even more militarization of civilian police.
While Biden's blathering about the need for a new domestic terror law has been vague, Schiff's is explicit: he would give the government the same powers to fight domestic terrorism that it has to fight foreign terrorists, and with it the power to potentially turn political speech and dissidence into incidents of domestic terrorism.
Even the Squad is in on the game, with just enough of them voting 'present' last week rather than 'no' to allow a $1.9-billion bill to pass that would effectively super-secure the people' house ... against the people.
Throw in the Biden position on warrantless police searches and it's pretty evident what's going on. The president and the Democrats care not a wit about civilian police officers and the great job they do - in fact they throw them under the bus for show.
But when it comes to state police power backing up unchallenged government authority, they're all in, even when they are breaking down your front door. Especially when they are breaking down your front door.
To President Biden and his neoliberal brethren, the chant is not Long Live the Police. Their chant is Long Live the Police State.
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