It goes against the US tradition, but I'd prefer to not have the 'fruit of the poisoned tree' doctrine but instead direct penalties for violations by police.
As it stands, it has the following effect:
1. If illegal actions by policemen violates the rights of someone commiting a crime, then the evidence obtained this way is discarded, letting a true criminal go free, assuming that the evidence actually proves guilt.
2. If illegal actions by policemen violates the rights and privacy of an innocent person (e.g. me) then nothing happens.
In both cases, any benefit of the doctrine goes to people who don't deserve it - the lawbreakers with or without badges and uniforms.
For most law-abiding people who value their rights and privacy it would be rational to request that the doctrine is "violations by police in gathering evidence get handled by existing law".
If a policeman obtains evidence by breaking down a door without a warrant and taking some documents, despite being a professional with special training on what their specific rights and duties are, then let the evidence stand but let also the policeman stand trial (not disciplinary action, but a proper trial) for breaking and entering. Just as for cases of policemen shooting people - at least worldwide, given the recent events I'm not sure anymore how it's in USA.
Bivens actions,[1] and suits under 42 U.S.C. 1983,[2] exist precisely to remedy Constitutional violations in situations where the exclusionary rule doesn't apply. They allow you to sue for money damages for violations of your Constitutional rights by federal and state actors, respectively. They are very common.
However, police have qualified immunity in such suits unless their actions were in violation of "clearly established law." Under qualified immunity, the police can't be penalized for guessing wrong when it comes to unsettled law, or when a court decides to take the law in a new direction.
This decision is quite a departure from the general rule that anything visible from public property is outside 4th amendment protection. So the police here would likely be protected by qualified immunity for failing to anticipate that a court would take previously well-established law in this new direction.
>This decision is quite a departure from the general rule that anything visible from public property is outside 4th amendment protection
I don't believe that to be true. Were Vargas in a suburban or metropolitan area the ruling may have been quite different. The order specifically mentions that being in a rural, isolated area comes with different expectations of privacy.
16 The American people have a reasonable expectation of privacy in the activities
17 occurring in and around the front yard of their homes particularly where
18 the home is located in a very rural, isolated setting.
Might that not incentivize law enforcement officials to hire a series of scapegoats?
"Listen, Mike, we really need this drug dealer in prison. Break into his house, and get use the evidence we need. Penalty for that is, what, a year in county lockup? Plus we're just about certain you'll get out in six months for good behavior. Plus, hey, it's Christmas time, couldn't your family use a nice bonus for presents?"
The current situation can also incentivize organized crime to hire law enforcement officials - "Listen, officer Mike, we can't figure out how to safely distance ourselves from this stash of bodies/drugs/guns/whatever. Break into this house without a warrant based on an anonymous tip. Penalty for this is, what, a written reprimand? We're just certain we can give you better bonuses than the county district can afford.
(Assuming that the doctrine works in the way I understand and there aren't nifty extra failsafes built in)
You should read about what goes on in countries that don't have this rule, even countries you'd consider otherwise functioning western democracies.
The police "know" you're a pothead so they break into and search your house. The search is entirely illegal but you go to jail anyway, after all they found some evidence. If they didn't find some evidence that's just a fine paid out of taxpayer money (police are similarly unaccountable almost everywhere).
By having the fruit of the poisoned tree doctrine police have a direct incentive to follow due process to the letter, least they get evidence or their entire case thrown out of court.
As other commenters here point out this doesn't always work out well in the US, but at least it's better than nothing.
If I understand you correctly, are you really saying that getting a prosecutors case not thrown out of court a few years later is "a direct incentive" to a police officer, but personal liability for the same officer would not be a direct incentive ?
Note that in the parent post I'm explicitly mentioning direct criminal action against the officer personally, not compensation claims against the police district; as far as I understand, fines are not an option for felonies in USA, and even the lightest possible 'guilty' sentence would automatically get such policemen out of their jobs after the first such act.
Yes, that's what I'm saying. Getting cases thrown out frequently is an embarrassment to the police force as a whole. Whereas getting fined for the wrongful doings of a police officer is usually just a slap on the wrist for the police department, and it's paid out of taxpayer money.
Sure, having criminal action against the officer personally would be nice, but it seems as though it practice that's much easier to erode than the fruit of the poisoned tree doctrine. After all who polices the police? At least with a doctrine like that you have a different branch of government handling it. In any case prosecuting police for violating the law is not mutually exclusive with the fruit of the poisoned tree doctrine, both are nice things to have.
I really don't see any downside to the fruit of the poisoned tree doctrine. If police are doing their job as they should it'll never even come up, but if they aren't they're committing a grave offense against society as a whole, and shouldn't be allowed to limp away with whatever illicit evidence they've gathered while performing illegal acts.
In the US, illegal actions by policemen (alleged or not) result in suppression of that evidence less than 10 percent of the time (in actual courts). Judges just don't like to suppress evidence, even in the face of what you and I would consider overwhelming reasons.
Police in the US get an extreme amount of benefit-of-the-doubt from the public and especially prosecutors' offices (police keep them in business and both sides value their working relationships), as we've seen in recent newsworthy court cases- this alternate approach you've suggested does not appear to be an improvement except in theory.
Bribery laws also don't mean that every crooked official gets caught, but still they have some positive effect as a deterrent.
I'm fairly sure that if a cop had a 'less than 10 percent of the time' risk of permanently ending his career, then they would be much more careful than they are now. Of course, there could be an argument that we as a society don't want our cops to be too careful with rights of criminals, we also have an interest in them taking some risk and getting risky evidence; but that's a bit different direction of values/morals/rights.
There are more possible effects than the 2 you include. Another would be the police violates your rights, plants evidence, and you are unable to prove your innocence... off to jail you go. Another would be the police violate your rights and coerce a false confession out of you... off you go to jail.
And your example of "breaking down a door without a warrant and taking some documents" doesn't help an innocent person who's being framed. Further, a possible trial is something of a deterrent... but not much (see Eric Garner and grand juries).
If recent events have shown anything, it's that it's very hard to hold the police criminally accountable. Why would you remove one of the few incentives against illegal search?
Needing a warrant for long term video surveillance of one's home--I can get on board with that. Despite the defendant's bad reputation, the larger implications here have the EFF defending the common man as per usual.
Concepts like "rights" and "freedom" are easy when it is people you like doing things that you like. It is so easy, that it isn't even necessary to bother with the formalization of those concepts in these easy cases. The entire point of "rights" and "freedom" is that they must be upheld for the people you hate, doing things that you hate.
When judging the level of freedom in a society, you don't look at how the normal citizen is treated; you look instead at how the underclass, criminals, and other disliked groups. If their rights are overlooked and ignored, any claims at being a "free society" is just marketing/PR.
If there is every a doubt in your mind, consider that at some point, your actions, race, or lifestyle might make you the target of similar hate. It is very bad for any majority group to be able to take the rights away from any minority group.
You don't have a constitutional right to be free from being photographed in public spaces.
If someone wants to follow a police car from a safe distance for weeks and videotape it to capture the civil rights infractions done by its officers; this is now an unconstitutional activity?
The proper way to place a check on this power is for people to decide this is not a good way to spend its money rather than absurd judicial gymnastics.
Wow. Not only the obvious issues with this, but they used his shooting some cans (not exactly a crime) with a rifle as grounds for a warrant to search his house, for an unrelated crime (the one they really wanted to peg him on, drug trafficking; a diatribe in itself). That's all -manner- of wrong.
Shooting cans isn't a crime, but being an illegal alien and possessing a gun violates federal law.
> A month later, police observed Vargas shoot some beer bottles with a gun and because Vargas was an undocumented immigrant, they had probable cause to believe he was illegally possessing a firearm.
If they had seen him shooting cans when walking by on the street, and then gotten a warrant to search his house, this would've been totally legit.
Edit: don't get the down votes. Do we not like gun control or what?
> If they had seen him shooting cans when walking by on the street, and then gotten a warrant to search his house, this would've been totally legit.
The article states this was a rural area, so it's quite possible that his front yard isn't even visible from the road, which is why they had to install cameras (possibly even on his property) instead of parking across the street for a stakeout. Especially given that he was shooting bottles or cans in his front yard, I'm willing to bet it was off the beaten path. I don't know the laws in Washington, but here in Georgia there are laws about shooting near public roads and other people's property. Even though my own home is in a semi-rural area, I'm not quite far enough from the road to do that.
According to the EFF, the camera was installed on a "utility pole overlooking his home" but doesn't mention how high off the ground the camera was or how far the pole was from the front of the house.
Exactly. We need more information. There is a utility pole that is clearly on my property, but I'm not allowed to cut it down or use it for anything, because technically it belongs to the utility company, not me.
So when the cops put a camera on the pole in question, did they have to get the permission of the utility company? I can't imagine that going over well without a warrant, if for no other reason than they don't want some third party disrupting their power or communication lines.
If they had seen him shooting cans when walking by on the street, and then gotten a warrant to search his house, this would've been totally legit.
Which is going to increasingly be a problem. This whole thing could have been whitewashed by having someone "walk by" the house after seeing the warrantless surveillance (a la the NSA to DEA "tips"). I'm not sure what the answer should be, but the police can easily circumvent this ruling in the future.
Such claims are subject to cross-examination, though. In this case, the obvious question would be 'how did you happen to be passing by?' and looking for verification of someone having been there at the time and ate in question, eg dispatch communications.
The term of art is "parallel reconstruction." In presenting law enforcement with ill-gotten information, the intelligence service also provides a plausible account of how law enforcement could have gotten the information in another Constitutionally sound way, including the all-important articulable cause for suspicion that would make this entirely fictional series of events legally admissible in court.
In essence, it's a process whereby intelligence services and law enforcement agencies conspire to knowingly violate the civil rights of the people they target while perpetrating an overt fraud upon the court - all in the name of "protecting national security."
Presumably because there are so many of them. The whole situation has gone so completely wrong that they are now handing out driving licenses to undocumented immigrants:
I love how we legitimize the past and current commission of a crime by saying "here, let me give you identity documents".
They make it sound like the poor "undocumented immigrants" are being unfairly punished by having their cars impounded. WTF, really? They are here illegally. They should be deported. If they want to immigrate then do it LEGALLY like millions of other people.
Do I think we should change the immigration laws to make free movement of people easier? Hell yeah.
Do I think we should be obliged to follow the laws as currently written? Of course.
If you do something illegal you get punished, simple enough.
Being an illegal immigrant isn't necessarily a crime. It can be, but in a great many cases it's just an administrative violation. 'The laws as currently written' are not as simple as they sound - in many cases immigration law is arbitrary or self-contradictory.
I take issue with trying to classify it as an administrative violation. If your residency status is not legal, then you are committing a crime. Big or little, it is still a violation of the laws as written.
crime n. an action or omission that constitutes an offense that may be prosecuted by the state and is punishable by law.
As far as the laws being arbitrary and/or self-contradictory, I won't disagree. THAT is what all the immigrant advocate organizations should be addressing. Not finding ways to make a person living here illegally get things like drivers licenses. Get the laws changed so they can more easily apply to live here legally.
Most laws are arbitrary and/or self-contradictory, yet we are still punished if we are caught violating them. In addition, there are so many laws, that most of us are constantly committing crimes (at a rate of three felonies a day).[1]
Harvey Silverglate is full of it and I wouldn't trust him to tell me the time. When you look into the cases he mentions you always find all kinds of incriminating detail that he left out of his articles. I've debunked some of his claims in detail before here on HN but I can't be bothered to dig that up again now. You should probably be able to find with a Google search though, I'm pretty sure they addressed this very WSJ article.
The problem occurs with children. Imagine you spent seventeen years of your life growing up in the USA and then someone tells you you are not here legally.
You consider yourself american in every way and know no other country.
Committing a crime requires you to have awareness that what you are doing is likely something illegal. Children like these have no idea.
>"Committing a crime requires you to have awareness that what you are doing is likely something illegal. Children like these have no idea."
Most recent laws do not require mens rea.[1] It used to be that conviction of almost any crime would require mens rea, but there are now so many complex laws in the western world, (over 10k felonies in the USA, and at least 3000 federal ones;) that this requirement has been relaxed in most cases.[2] I believe that mens rea should be a requirement of all laws, and that the criminal laws should be drastically simplified, but my will is not law.
Well, being born here solves the problem from one angle.
The other issue would be a baby brought here illegally, right? Answer me this, how did they get services, like schooling, when they have no legal status to be here? If their parents are not legal residents, how are they getting paid? If they are getting paid under the table then there is no tax money going into the system for the services they and their children receive, right? So, if we rewind back to when the child was first enrolled in school, how did that happen? they should have been identified as a non-legal resident at that point in time. The fact that they made it until high school is tragic but still not legal.
Really, how is it that an illegal resident can do things like enroll in school, register a car, etc. when they have no legal standing to be here? If you are here legally you have a visa, green card, or citizenship, right? Those are all verifiable states.
Yes. Children have rights enshrined in the UNCRC. People have rights in the UDHR.
Article 2 of UNRC says:
> 1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
> 2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.
Article 7 says:
> 1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.
Article 8 says:
> 1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
> 2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.
Article 15 of the UNDHR says:
> (1) Everyone has the right to a nationality.
> (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
I agree. However, the manner in which the evidence of the illegal firearm was obtained is a serious issue.
So, my question was, if they had a reasonable suspicion he was a drug dealer but not enough evidence to obtain a warrant, then why not let ICE handle the matter since he was an illegal immigrant anyway?
And to be clear so people don't get it in their head I have something against immigrants, I'm all for people immigrating to wherever they want to live, but it's 100% unfair to those immigrants who did it legally to treat illegals like anything other than an illegal immigrant who should be deported.
P.S. Is using the term undocumented immigrant supposed to be the PC way of saying illegal immigrant?
> So, my question was, if they had a reasonable suspicion he was a drug dealer but not enough evidence to obtain a warrant, then why not let ICE handle the matter since he was an illegal immigrant anyway?
That effectively lowers the standard for searching homes of illegal immigrants from probable cause to reasonable suspicion. That's probably a harder political sell than trying to get enough evidence to find probable cause for violating of a gun control law.
I worded it wrongly I guess. In the article it wasn't a question whether he was an illegal, they knew he was an illegal.
I'll agree, letting ICE search the home would be a slippery slope and probably a bad idea as well. But at the very least, if they want to address the problem of him being a drug dealer then they should be able to use the fact that they know he is an illegal to at least deport him and solve the drug issue in a lateral manner, right?
If I had to guess, because it's problematic because they wouldn't have had probable cause to determine his immigration status anyways. I.e. they can't just walk up to the guy's house and demand to see his green card just because.
And yeah, that's pretty much exactly what it is. Some group of fools think that referring to immigrants with the qualifier "illegal" is somehow a slight against the person rather than their legal status.
Being required to carry it at all times and being hassled on the grounds of your skin color because you might be here illegally are two different things. The reasonable suspicion standard and other rights don't stop applying just because someone is an immigrant.
The reason for the word change is because it is conceptually wrong
The action of being in the country might be unlawful, but the person himself is not unlawful. The use of "undocumented" instead of any other word not a "tactic to downplay the issue", instead it express the lack of legal residence status is due to not been able to obtain documents to correct its residence status
If we transfer the characteristic of the action to be a characteristic of the person then if you have drive above the speed limit, you are an illegal driver; and so on
But don't worry, I am pretty sure ICE was waiting for him outside the court
I disagree. They are an immigrant to the country and they entered illegally, therefore they are an illegal immigrant. I fail to see how that's an inaccurate description.
Switching from illegal to undocumented can be attributed to the effort to downplay such people's involvement in what is essentially a crime. I have read the reasoning behind such a change, that illegal criminalizes the person and not their actions. Which seems to be what you are saying. But the term does in fact name their actions, immigrating illegally, and not just the person. The person committed an illegal act, it is not unwarranted to name them as such. It is simply an attempt to separate the person from the action, which you cannot since the person committed the action.
As for your example. I would agree that in some instances such a person could be described as an illegal driver. Not for a minor offense, but if they committed an act that the law then barred them from operating a motor vehicle then they would indeed be an illegal driver if they later drive. Much like an immigrant is barred from entering the country outside of legal means.
To reverse your logic, bank robbers can just be described as undocumented withdrawers. But somehow that doesn't seem to make sense.
I'm personally okay with the full term "illegal immigrants" - which is not to say that the situation isn't more complicated and nuanced than most other crimes, but I tend to be suspicious of euphemisms like "undocumented".
However, the far right tends to shorten it to "illegals", which I find unacceptably pejorative.
How many bank robbers have you heard called illegal withdrawers?
The rational for this difference is sound, but I don't see this happening because the public decided undocumented was a better word then illegal for the direct object. More likely the language would adapt and allow the "incorrect" usage, for the same reason we're losing our irregular verbs.
We don't refer to bank robbers as illegal withdrawers, but we do refer to them as felons -- a person who has committed a felony. We attach the action to the person because shouldn't a person be defined by their actions?
People can have many titles. A felon can also be a father, a loving husband, a liar, etc. But why should a person who has immigrated illegally not have the title of "illegal immigrant" among their list?
By labeling them "bank robbers" you are criminalizing the person and not the action. That is inherently unfair and you should apologize to these affected people for your insensitive remarks.
The reasoning is sound and a quick look around at the groups who have been pushing the change in language, for right or wrong, shows that many of them use that very reasoning. To downplay the issue.
The funny thing about all this is I had a similar thread happening today about the proper use of the description "illegal firearm".
A person's actions should (and does, in my opinion) define them. Society does this all the time. A person who breaks the law and commits felonies has the title of felon. A person who does charity work has the title of philanthropist. A person who regularly speeds and does not pay attention to the road is a reckless driver.
One can do many things and thus have many titles, but I fail to see why a person who immigrates illegally should not have the title of illegal immigrant.
But the term is "illegal immigrant" and denotes a person that illegally entered or resides in a country. Changing it to "undocumented immigrant" makes it sound like a simple absence of documentation due to a procedural fault, but that's not the issue. Generally they entered illegally and in cases where they stay past a visa, that action is also illegal.
The term is in fact 'alien'. Strictly speaking the law refers to 'illegal immigration' as a proscribed activity, but it's not extended to individuals, all of whom are classified as aliens (hence the old-fashioned term 'illegal alien,' which is no longer current since the passage of IIRIRA in 1994 but still exists in many older official documents. http://www.uscis.gov/tools/glossary
I'm personally OK with 'illegal immigrant,' but when you say a person is illegal (qua 'illegals') then that comes across as an implicit denial of legal personhood. This might seem pedantic, but the US constitution already distinguishes between rights of citizens and of persons in general, while many people who object to illegal immigration would like to deny the rights to accrue to all persons to those who have immigrated illegally, including myself. Thus, the term has become somewhat loaded to a greater degree than the authors of the current law may have intended.
I think all people have rights, illegal immigrant or not. I also happen to think if you are here illegally you should be deported and required to immigrate legally. No ill will involved. I don't think of immigrants as sub-standard and anything even remotely like that (as an unfortunately large group of people think). Most of the population of the US is immigrants, strictly speaking.
As for terminology, IANAL. From my viewpoint if you illegally immigrate, through action or inaction, then you are an illegal immigrant. I've never much liked the term alien as it has also been used to describe little green men and such.
I think taking issue with calling a person illegal is splitting hairs, but I'll go along. The person isn't illegal, but their residency status is illegal.
And my last point, to reiterate on what I said earlier, I have no ill will towards illegal immigrants and know they have basic rights. I would expect they get treated fairly under our laws (well, as fair as out laws can be). That being said, they are not here legally and I would expect that changes the legal avenues available to them.
You can argue that "undocumented immigrant" doesn't capture the actual meaning, but that doesn't make jorgeleo's point any less valid: the action is illegal, not the person.
But the person committed the action, so it doesn't seem unfair for the description to describe both. Much like how we use various descriptions to describe people based on their actions.
What do you mean the person himself is not unlawful? The presence of that person in this country is illegal which may be used as an adjective. That person is also an immigrant which is a noun. That person is "an illegal immigrant". Am I incorrect?
"Retarded", like "undocumented" of immigrants, originated as a euphemism meant to protect the people so labeled from the hurtful term in ordinary use for them (here, "stupid"). As you point out, it turned out not to be all that protective.
My first response is phrased as an argument against your point, using what I thought was a well-known example that strongly supports your point. It's facetious.
I've read of a philosopher who made the argument, "the theory of evolution can't be true, because if it were true, that would imply that someone could make a lot of money by replicating images of Elvis Presley." My comment has the same structure, but I'm already aware that the evidence directly contradicts the stated point. So "your theory of terms having negative valence based on their meaning (instead of arbitrarily) is incorrect, as can be seen by how the slow of wit gained new respect from society when the socially-enlightened term 'retarded' replaced the old, denigratory 'stupid'. According to your model, 'retarded' would be an insult because of its negative meaning."
It wasn't an "illegal firearm", it was illegal for him to possess any firearm because of his immigration status. There's a huge difference there.
Edit: Reading your comment again, I think what you wrote can be taken either way (he was illegally possessing firearms, or he was possessing illegal firearms). So we may be in complete agreement here.
Any law making it illegal for him to possess firearms is likely unconstitutional. The only places where citizenship is explicitly mentioned in the US Constitution is in regard to eligibility for federal offices and jurisdiction of the federal courts. To a non-lawyer, it looks like a slam dunk.
The feds and the states are simply not allowed to make laws restricting ownership or possession of firearms. And yet such laws get passed and enforced anyway.
His defense would have to explicitly bring that up, and I doubt there are many attorneys that want to go there if they could possibly avoid it. That same argument has already been rejected at the appellate level by the 4th circuit, so it would likely have to go all the way to the SCotUS to stick, and unlikely they would decide to hear it.
In any case, even if he ate babies in his spare time, I emphatically reject the idea that plinking cans is sufficient to generate sufficient suspicion for a search, as it is not a crime in itself when nothing else is known about the person doing it. It is, on its face, an innocent activity.
If we want this country to not be a police state, we have to accept that fighting crime will have a minimum level of difficulty. The Blackstone Ratio suggests that this guy might have to go free in order to protect innocent people from bogus police tactics in the future.
> Any law making it illegal for him to possess firearms is likely unconstitutional. The only places where citizenship is explicitly mentioned in the US Constitution is in regard to eligibility for federal offices and jurisdiction of the federal courts. To a non-lawyer, it looks like a slam dunk.
It's not a slam dunk. The second amendment reads:
> A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Who are "the people?" In the Preamble to the Constitution, the phrase "the people" clearly refers to the political community creating the new government, which arguably excludes illegal aliens. The Supreme Court in Heller v. District of Columbia construed "the people" in a way that is consistent with that use, and which lower courts have taken to mean that illegal aliens don't have second amendment rights.
However, the bill of rights uses "the people" to refer to the first amendment right to peaceably assemble, and the fourth amendment right to be protected against unlawful search and seizure. If "the people" is interpreted consistently for all the amendments, that implies that illegal aliens don't have several rights under the bill of rights, which is problematic.
Echoing your 'problematic' point, the author concludes:
"My point is simply this: if the Second Amendment protects a truly fundamental individual right, then barring any firearm possession by all illegal aliens cannot be upheld without more—a more robust judicial holding that its fundamental protections are categorically denied to a class of persons, or a more-than-cursory legislative justification for the restriction of these protections. If the statute can stand as is, then perhaps the right to bear arms is less central to the constitutional pantheon than its most zealous advocates would have us believe."
In the Preamble to the Constitution, the phrase "the people" clearly refers to the political community creating the new government, which arguably excludes illegal aliens.
This would seem to also exclude citizens who do not vote or hold office. And oddly it would imply that an undocumented drug-dealer with a fake voter ID is more protected than otherwise law abiding 'illegal alien' who dutifully supports the government with their taxes. How is that resolved?
I interpret the fact that "people" and "citizen" are used in different places for different purposes to mean that the choice of wording does have significance.
In any case, the Constitution is a limiting document. It restricts what the government is allowed to do. In the context of the 2nd amendment, it is not allowed to create arms control laws. It does anyway. Differences in the de facto exercise of rights between citizens and non-citizens are likely due to different levels of access to the court system and in relative political clout, rather than some underlying intent that is not obvious in the document itself.
By plain reading of the law, "the people" means the people. It includes any humans acting in their own capacity, as themselves, rather than as the agents or representatives of another legally distinct entity. Begging the pardon of the state, and its judges, but the people do not find it convenient for the state to redefine what personhood means, especially when done in a way that skirts the limits set forth by the people for the government.
You have to be a lawyer to think that "the people" does not include any person. A non-lawyer can apply the common meaning of the word and use it without stopping to argue over whether it means what it means.
I don't give a fig whether it is about Mexicans or Tenctonese. If they are people at all, they are people who have the right to keep and bear arms.
Besides that, if "the people" were so defined as to include only those people who created the government, I, as someone born more than 200 years later, would certainly not qualify. If you exclude illegal aliens on that basis, you exclude everyone who did not explicitly ratify the original document, which is to say almost everyone alive today, excluding only those who have sworn an oath of office. If I am not thus protected by the law, I am not obligated to follow it. Do we really want to open up that can of worms? Lysander Spooner's "No Treason" essays may elucidate further, but I think perhaps it would be a greater boon to civil order if we agree that "the people" are not necessarily a specific subset of people.
Begging the pardon of the state, and its judges, but the people do not find it convenient for the state to redefine what personhood means, especially when done in a way that skirts the limits set forth by the people for the government.
As Justice Jackson said 'we are not final because we are infallible; we are infallible only because we are final.' The Supreme Court and those deriving from it exists not to establish truth but to settle controversies, even though this may mean inconsistent behavior over time. In that sense, it functions OK.
The Constitution was: 1) written by lawyers; 2) written by lawyers who said "people" in many places in the Constitution but meant "people except blacks and women."; 3) written by lawyers who never intended the Bill of Rights to apply to state governments and state laws.
> In any case, the Constitution is a limiting document. It restricts what the government is allowed to do.
Many people argue that you've got it backwards. I've been told that some of the founders opposed the Bill of Rights precisely because they feared it would be treated as an exclusive list of limitations.
The rest of The Constitution, in stark contrast to the BoR, grants specific powers to the federal government. Some people argue that it's that body of text which should be considered an exhaustive enumeration. That is to say, any claimed power that can't be explicitly justified under those articles is not granted to the federal government.
If the Constitution is just an enabling document, rather than a limiting one, what do we use all the men with guns for, and how did governments without foundation law function before it was written?
In Anglo-American legal tradition, an explicit enumeration of included elements is an implicit exclusion of anything else. This is contrary to common sense, where if you say my grocery purchase includes apples and oranges, you might also be buying bread. Not so in law. If you write a list that includes apples and oranges, there is nothing else; that is the entirety of the list.
When the Constitution explicitly enumerates the powers of the government, it is saying that these things are the only things this government is allowed to do. In practice, the government found the vaguest and broadest enumerated power, and cites it as its justification for everything else that it does.
With the Bill of Rights, the 9th and 10th were inserted to allay those fears. Read the 9th again: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. That is an explicit reversal of the general legal principle that an enumeration is a complete list. Otherwise, it would indeed mean that the people have no other rights beyond what were enumerated.
So it is both enabling and limiting. The two are not mutually exclusive. But as the 9th amendment shows, there was a default assumption in place that requires the 9th to be inserted to explicitly contradict. Those people that argue that it is an exhaustive enumeration are most likely correct. But de jure and de facto exercises of power are sometimes different.
If you enumerate a power that says "...and anything else the Congress decides to do", then there is no limitation. The government doesn't even need to bother with the enumerated powers. Just throw everything into the catchall clause, even if it could be justified elsewhere, just to save time. And that's what the interstate commerce clause has become. An overly broad interpretation of that one power renders the remainder of the document largely irrelevant.
That's why the Bill of Rights was necessary. The Antifederalists thought (correctly) that the federal government would grow well beyond its initial limitations. Madison was aware of their arguments, so in addition to the whitelist of enumerated powers, there had to also be a blacklist of enumerated prohibitions. And it had an explicit declaration of "plus other stuff we didn't explicitly list here".
It should be a stark contrast. The main body of the document was written by and for optimistic Federalists. The Bill of Rights was written as a failsafe mechanism to address the concerns of the Anti-Federalist opposition, for when the original document inevitably failed to contain the unrestrained exercise of government power. Some people predicted before the thing was even signed that it would fail at its weakest point, which just happened to be the interstate commerce clause (but if it wasn't that, it would have just been something else).
The fact that we are now operating largely on the failsafe backup mechanism is a concern. We have no backup for the backup. The smart thing to do, rather than argue about the right to bear arms for illegal immigrants, is to patch the original point of failure. Fix the interstate commerce clause to make it more painful to use as a catchall, or repeal it entirely.
Correct. US v. Portillo-Munoz is on point and relies on exactly this argument, although there's an interesting partial dissent invoking Plyler, and we might observe that in the current case the Court has found no difficulty in extending 4th amendment protections to Mr Vargas notwithstanding his unlawful presence. I have my doubts about Heller but I got so sick of gun control arguments a few years ago that I stopped following those cases closely.
Could you explain the difference here? If he is undocumented and cannot legally purchase a firearm would it not satisfy both phrasings or does the latter (illegal firearm) refer to weapons banned from anyone possessing under law?
Typically saying "illegal firearm" means it is illegal for anyone to own the firearm in question regardless of the person's status or how they got it. If a person is barred by law from possessing a firearm then it is possible for them to have a "legal firearm" in their possession; for example, if someone not barred by law owned the exact same firearm then there would be no issue.
But I read the post in the manner that I'm guessing was intended, so I personally don't see it as a big deal.
The first time I read rayiner's post, I took him to mean a firearm that is illegal for anyone to purchase or own, i.e. an "illegal firearm". Reading it again, I realized his phrasing was ambiguous and he could have meant "illegal possession of a legal firearm due to immigration status", hence my edit.
So basically, it could be a legal firearm possessed illegally, or a banned firearm, based on his wording.
> If he's an illegal immigrant.. isn't that, well, illegal?
Not all crimes allow for a warrant to search property. Determining his immigration status does not require a search of his house. Charges for illegally possessing a firearm would usually involve obtaining the firearm as evidence of possession, hence a warrant would be issued.
I feel maybe the sketchiest part of the story was that they carefully turned off the video recording for exactly the period of time when they were executing the warrant. Of course we can't have _police officers_ being recorded on video...
So how do you go about applying this ruling? If I live in the suburbs do I have this protection? What if I live in a city? There are likely to be thousands of homes in view of existing cameras. Which ones of those are collecting admissible evidence? If a police department doesn't aim the camera at only one person's front door, but films several homes as a pretense, is that ok?
Is two weeks too long to set up surveillance? What about two hours?
I really hate the "reasonable expectation" standard in general and this ruling does nothing to clear the waters.
It's also interesting that they might not have got a warrant to look at his garden for a month. They weren't looking for any particular behaviour - just something that would allow them to barge into his house and discover evidence of drug-related wrong-doing. If they had spotted (say) public drunkenness, they might also have argued that his house be searched. Putting up a camera to spot 'any tiny thing that the person does wrong' would seem to be very flimsy warrant-wise (I would hope).
My local news station likes to do these specials about the "supposedly homeless" where they follow people who ask for handouts by the highway and film them going in to their homes and also film them through their front windows. I challeged the reporter on the ethics of this and she told me, 'It's perfectly legal.' While technically true, is that really a good source of justification?
If the beggars actually pretend to be homeless, I think they're fair game for being exposed. But asking for handouts by itself is not pretending to be homeless.
i wonder if this will increase or decrease the use of 'parallel construction.'
in other words, will this reduce the unlawful use of surveillance tech, or merely prompt officers/agents to walk by places 'by chance' to observe things 'serendipitously' because they're still using inadmissible surveillance tech but also know they'll need to fabricate something plausible for the courts?
If a human was watching the house in person, would a search warrant have needed to be obtained? Not trying to incite anything here--I realize there are differences--but I was curious about the legal implications of video vs. in-person surveillance of a property's exterior.
No civil libertarian is delighted to save criminals from prosecution just to frustrate law enforcement. It often happens that the frontiers of acceptable state conduct are tested in such cases, though. Here, EFF isn't interested in making sure Vargas can shoot cans in his yard without interference. Rather, they are concerned that the government not be able to put people's homes under 24/7 video surveillance without even probable cause (which is all that is needed for a warrant).
Then, maybe the correct course of action for the EFF would be to work on improving the warrant system, rather than working on keeping alleged drug-dealing, unlicensed gun owners, illegal immigrants out of legal trouble?
> Then, maybe the correct course of action for the EFF would be to work on improving the warrant system, rather than working on keeping alleged drug-dealing, unlicensed gun owners, illegal immigrants out of legal trouble?
That's what they are doing, this is how jurisprudence works.
Hadn't they challenged the warantless spying, it would have made a precedent in court. The police could have relied on the acceptance of the evidence in this case to do it again, anywhere in the US.
How would they "improve" the warrant system? The police went around the warrant to illegally spy on someone. The point of a warrant is to stop illegal spying, and make sure only people who deserve being spied upon are spied upon.
If the police was sure he deserved it and had the evidence to prove it, they should've just gotten the warrant. If they weren't, then they were just fishing and waiting for someone co commit a crime. And that's not just immoral, but against the Constitution.
Is anything wrong with the warrant system? The fact that police are often trying to avoid/circumvent it is not evidence that it isn't working as designed, just that it isn't working as they would like (which is to be expected).
Then, maybe the correct course of action for the EFF would be to work on improving the warrant system
What good does a warrant system do if the government doesn't follow the law? Trials like this are how courts get the executive arms of the government to follow the law. You'll notice that the presiding judge actively solicited a brief from the EFF.
Actually getting a wiretapping warrant is really hard and you have to execute it meticulously unless you want the evidence to get thrown out. At least, if you are law enforcement.
Of course, if you are the NSA and aren't charging anyone with any crimes, you don't have to worry about suppression hearings and the judge who issued it can never have that decision appealed like they could in a civilian court...
> As much as I support the rule of law, there's no way I can interpret that as benefiting mankind in any way.
A co-worker who was on law school explained these rules are to make sure an innocent person is never found guilty, even if that means letting criminals walk.
As it stands, it has the following effect:
1. If illegal actions by policemen violates the rights of someone commiting a crime, then the evidence obtained this way is discarded, letting a true criminal go free, assuming that the evidence actually proves guilt.
2. If illegal actions by policemen violates the rights and privacy of an innocent person (e.g. me) then nothing happens.
In both cases, any benefit of the doctrine goes to people who don't deserve it - the lawbreakers with or without badges and uniforms.
For most law-abiding people who value their rights and privacy it would be rational to request that the doctrine is "violations by police in gathering evidence get handled by existing law".
If a policeman obtains evidence by breaking down a door without a warrant and taking some documents, despite being a professional with special training on what their specific rights and duties are, then let the evidence stand but let also the policeman stand trial (not disciplinary action, but a proper trial) for breaking and entering. Just as for cases of policemen shooting people - at least worldwide, given the recent events I'm not sure anymore how it's in USA.