May 15, 2011

Mandatory Cop Inservice: Preserving and Protecting the Fourth Amendment

Save the fourth amendment

Fear of crime, not just fear of terrorism, has nibbled away at America’s liberties

IT IS only a mile or so from the colonnade of the Supreme Court to some of Washington, DC’s most dangerous neighbourhoods. But these two parts of the nation’s capital could be in different countries.

On any given night, armed police prowl north-east Washington in search of guns or drugs. So routine are these patrols that black men sitting on stoops or standing on corners will reflexively lift their T-shirts when the police approach, to show that they have no pistol tucked into their waistbands. Often the police will frisk them anyway, and search their cars as well. You might almost forget, in light of these encounters, that the fourth amendment to the constitution establishes the right of the American people to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

David Shipler, a former New York Times reporter and winner of the Pulitzer prize, does not want you to forget. In a new book (“The Rights of the People”) he argues that America’s search for safety is relentlessly eroding the precious protections in the Bill of Rights. He decided to write the book on September 11th 2001, the day al-Qaeda struck the twin towers. After watching the awful images on television, he suddenly understood: “There go our civil liberties.”

This column argued last week that the fears engendered by September 11th had made America a less trusting and innocent place, permanently on its guard against the danger of terrorism. An abiding symbol of this change is the prison camp at Guantánamo.
It is, however, not just the war on terror that has nibbled away at liberties. So, says Mr Shipler, have the fights against crime and illicit drugs. “In criminal justice, as in counter-terrorism,” he notes, “the executive branch has grabbed immense authority, distorting the process of determining guilt or innocence.”

Part of the damage is done by the habit of police everywhere to cut corners and stretch their prerogatives. But the Supreme Court has played a part, too. To take just one of Mr Shipler’s examples, the police must still usually show “probable cause” if they want a warrant to search a house. But for street encounters in which there is even the slightest possibility of danger to life, the court has over time substituted the woollier “reasonable grounds” or “reasonable suspicion”, thereby giving officers on the beat a latitude they are delighted to exploit. Most street pat-downs are never recorded, scrutinised by a prosecutor, challenged by a lawyer or adjudicated by a judge. Yet, says Mr Shipler, they weaken the fourth amendment and poison life on the street in a thousand poor neighbourhoods in America.

Not much has changed since the election of Barack Obama.   In his inaugural speech, the new president said that America did not have to make a “false” choice between its safety and its ideals. But having promised to close Guantánamo within a year, he has put the closure on hold in the face of resistance from Congress and public opinion. He has also had to drop a plan to try Khalid Sheikh Mohammed, by his own confession one of the 9-11 plotters, in a criminal court.  Now Mohammed is to be tried in Guantánamo, by a military commission.

As in the war on terrorism, so in the war on crime: the sharp question is how much risk a society is willing to absorb in order to preserve liberty. Mr Shipler’s conclusion is that America is increasingly prone to give the wrong answer. The premise underpinning its justice system is that it is far worse to convict wrongly than to fail to convict at all. But in its responses to drug-trafficking and organised crime that ideal has been severely weakened.

Complacency, fear and fashion

Since American politicians talk about liberty all the time, why are they so feeble in its defence? Part of the explanation is complacency: America is one of the world’s freest countries—why worry about the bending of a rule here or there? Part is fear: contrary to what Mr Obama says, there is a choice to be made between safety and liberty, and in many minds safety wins. Part is fashion. There are some libertarians in American politics, but on the conservative wing of the Republican Party the liberty talk has come lately to dwell more on the alleged threat to economic freedom posed by Mr Obama’s alleged taste for big government, and less on the sort of freedoms entrenched in the Bill of Rights. The second amendment, on the right to keep and bear arms, is treated as holy writ, but the fourth has somehow lost its sex appeal.

Bonus Story: 

INDIANAPOLIS | Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.   More...

More YET..How to Protect your Rights During a Police Stop: Your government, laws, rights, and the ACLU.

Me thinks Eagles have too much power over us regular birds.

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