(Untitled)

[gunslnger]

To partially answer the question of why some people want smaller government, here are two examples.

Indiana Supreme Court: citizens have no right to resist unlawful police entry

Short version: A police officer is within his rights to enter a home for any reason or no reason at all, while a homeowner is powerless to block or interfere in any with

Comments

[a_new_machine]

Quoting the amendment doesn't answer the question. The right to security against unreasonable searches exists, yes. This does not mean that citizens get to enforce it. The right to freedom from racial discrimination exists as well, but that's enforced only by Congressional action under Section Five of the Fourteenth Amendment. The Fourth Amendment does not explicitly vest enforcement powers. It does not, to use the libertarian phrase, grant a positive right to the use of force to defend against unreasonable intrusion. It simply commands government not to do it. So I ask again: facially, how does the Indiana court's ruling violate the Constitution?

As for the SCOTUS ruling: how does "the warrant issue" cover this? Obviously if you're raising a judge, preparing and submitting an affidavit, receiving the go-ahead, and then preparing and executing the search, they'd have more than enough time to destroy large amounts of evidence. The warrant requirement does not apply to all searches. That's visible from the text of the amendment: it's not "unwarranted" searches and seizures, it's "unreasonable" ones. A warrant was generally recognized as an indicator of reasonableness - a presumption that the search was reasonable - but it is by no means the exclusive test for reasonable search, nor was it when the Amendment was ratified. So here, as well, the plain text does not answer my question.

[a_new_machine]

Interesting - the Fourteenth Amendment is, similarly, a restrictive amendment, and yet it has an explicit enforcement provision. Why does one require enforcement, and more than that, enforcement by Congress alone, and the other is self-enforcing or enforced by the citizens?

[a_new_machine]

So, must we presume that any provision in the Constitution that doesn't explicitly state how it will enforced, must be enforced by private citizens? If not, then what makes the Fourth Amendment different from any of the other negative rights (rights against double jeopardy, or the right to be free of restrictions on speech) in the Constitution?

[a_new_machine]

and if the government does, that the citizenry can appeal to the court.

So, you're saying both that they can appeal to the court for relief (thus enforcement rests with the courts), and that they can physically resist the intrusion? Or one or the other? What the court says here is, "You cannot physically resist. If you want relief, come to us." And you can do that. What you've said in that post would allow the Indiana ruling.

[a_new_machine]

Well, yes. But then, people break laws - especially ones so personable and mutable as what is "reasonable" under a given set of circumstances. It's easy to say "well they shouldn't have broken the law," but unless you want to make everything wholly subjective (that is, what is reasonable to each investigating officer) you're going to need someone other than the officer to decide when they've overstepped the law.

IMO, the best way to do that is via the court system - it reduces the chance of rash and disproportionate responses on either side, provides a neutral arbiter, and "cools" the conflict over time, while carrying the mark of legitimacy that the courts provide (at least, when you agree with the ruling :P ). Giving the decision for what's "reasonable" into the hands of every homeowner everywhere is asking to have them overreact.

[a_new_machine]

Let's put it this way:

You're a homeowner, and you're perfectly innocent of every crime under the sun. The cops show up at your doorstep with a warrant to search your house for evidence of . You know with epistemological certainty that you are innocent, therefor you will think their search is unreasonable. Now, let's presume that whatever evidence they had that you *did* commit a crime was strong, but they were interpreting it wrong, or something. But they definitely fulfill the warrant requirements (probable cause and particularity).

Is that search unreasonable? I, as an innocent bystander with no knowledge of your guilt or innocence, would say it's reasonable, because they're following a solid lead. But you, as a homeowner certain of your innocence, would say yes, it damned well is unreasonable, especially when you remember that they will toss the entire house as bad as any burglar, occupy it for hours or even days with forensics, etc.

Should the homeowner in that situation really be the one making the call as to whether the search of their home is reasonable?

[a_new_machine]

But warrants can be judged unreasonable later. They can be based on false evidence, or the judge could've fucked up and not included particularity in the warrant.

[a_new_machine]

Also: You're misreading the decision. What it says is "If this was illegal, then you need to come to the courts. You have no right to make the decision of its illegality, and then enforce it, on your own. That's the courts' role." The article is, frankly, a shitty synopsis. For instance, from the article:
[quoting the decision] "a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest."

[the reporter's restatement]Short version: A police officer is within his rights to enter a home for any reason or no reason at all, while a homeowner is powerless to block or interfere in any with the officer's entry.

The difference between the court's statement and the reporter's version is vast. One states that force in the moment is an improper means of obtaining a remedy to an illegal entry. The other (incorrect) one says that there is no available remedy for illegal entry.

[a_new_machine]

It's the difference between "violence is not the answer to this conflict" and "there is no answer to this conflict." But leaving that aside for the moment...

I still don't see you offering any rationale for why a private citizen should get to decide what is reasonable with regards to a search of their home. It's just way too subjective to leave to so vitally interested a party. I'm sure every drug dealer in the world would think that a search of their home was unreasonable. Should we let them decide to fight the police off with force? Should we allow that as a defense when they're later taken up on charges for fighting the police off?