Monday, November 3, 2008

Skipping from the 1st Amendment to the 4th - How Wide is the Border? How Serious is a Seat Belt Infraction?

Well, I've pretty much exhausted the First Amendment to the U.S. Constitution, I guess (although volumes could be written on it, and have been).

I was mulling over moving on to the Second Amendment - I really wanted to delve into the whole "well regulated militia" idea - but then I read something at Liberty Maven. That post links to an Advocates for Self-Government post from James W. Harris that uses the phrase "Constitution-Free Zone."

"Constitution-Free Zone" is a term the ACLU has created to dramatize yet another massive new federal assault on your Bill of Rights freedoms.

Under the Fourth Amendment of the U.S. Constitution, the American people are not subject to random and arbitrary stops and searches.

The border, however, has always been an exception to this. The Supreme Court has long upheld the government's right to conduct a "routine search" of people entering and exiting the country, without a warrant or probable cause. This is known as the "border search exception" of the Fourth Amendment.

OK, so who cares about something going on at the San Ysidro checkpoint? But wait, the border's a little wider:

The federal government defines the "border" as a 100-mile wide strip that circles the United States.

Nearly two-thirds of the entire U.S. population -- almost 200 million people -- live within this strip.

So what is being done at the "border"? The Washington Post:

In July, the Department of Homeland Security disclosed policies that showed that federal agents may copy books, documents, and the data on laptops and other electronic devices without suspecting a traveler of wrongdoing. But what DHS did not disclose was that since 1986 and until last year, the government generally required a higher standard: Federal agents needed probable cause that a law was being broken before they could copy material a traveler was bringing into the country.

But let's say that you're not involved in a so-called "border" case. What could happen? This 2004 article describes a U.S. Supreme Court decision:

In 1997 Gail Atwater was pulled over by Lago Vista, Texas police officer Bart Turek. Atwater violated a big brother law--driving her car without wearing seat belts....Only, this time, Atwater had her two daughters in the car with her. The daughters were ages 4 and 6 Neither of them were buckled up. In addition to this "serious infraction" of a Texas law designed to protect us from ourselves, Atwater committed two other infractions....She did not have her driver's license on her--nor did she have proof of insurance in her vehicle.

And Atwater and Turek knew each other:

Spotting the unbelted youngsters, Officer Turek pulled Atwater over to the side of the road, jumped out of his cruiser, and approached her in a rage.

"We’ve met before," he said, referring to a similar incident three months earlier, when he had let Atwater off with a warning. "You’re going to jail." He then began scolding her loudly for not taking better care of her children.

When Atwater asked Turek to lower his voice because he was scaring her kids, the officer jabbed his finger in her face and repeated, "You’re going to jail." The terrified woman asked to take her children to a neighbor’s house first. "You’re not going anywhere," said Turek. He threatened to take the toddlers into custody for their own protection.

Then, after asking Atwater to step out of her vehicle, Officer Turek handcuffed her, hands behind her back. By this time, the commotion had attracted a knot of curious neighborhood kids, some of whom ran to get their parents. One of Atwater’s friends appeared and volunteered to babysit her children while their mom headed for jail.

Turek put Atwater in the back seat of his squad car and drove her to the local police station. (Ironically, he didn’t buckle her safety belt for the ride.) At the station, she was asked to empty her pockets and remove her glasses, shoes and jewelry. Officers took her mug shot and locked her in a cell for an hour. After posting bail, Atwater went back to the neighborhood to get her truck, only to find it had been towed away.

As it turned out, Atwater had more than her wheels to worry about. The incident traumatized her children. Plagued by guilt that he could do nothing to help his mother and sister, Atwater’s son later underwent therapy with a child psychologist. The mere sight of a police officer would terrify him.

So what happened next?

Atwater pleaded guilty to the charge of driving without a seat restraint. The other two charges, driving without a license and driving without insurance, were dropped. Those charges were added solely to justify Turek's poor judgment as a law enforcement officer.

Atwater and her husband sued the city of Lago Vista and Turek, claiming their 4th Amendment rights were violated by the officer. The US District Court found for the city. The 5th Circuit affirmed the lower court's ruling. The majority ruled that police can fully arrest anyone--and place them in restraints--for minor violations of the law that normally generate only a ticket and a fine. Justice David Souter, who generally rules with the liberals, saw nothing wrong with arresting, handcuffing, and taking into custody, a mother who was taking her children to school because she wasn't buckled up--and because she forgot her driver's license.

Sandra Day O'Connor, who generally sides with the conservative, rule of law justices, sided with Ruth Bader Ginsberg, John Paul Stevens, and Stephen Breyer, arguing that the "...recent debate over racial profiling...demonstrates all too clear [that] a minor infraction may often serve as an excuse to stop and harass an individual. After today, the arsenal available to any officer extends to a full arrest and the searches permissible concomitant to that arrest."

O'Connor continued by saying it is not up to the justices to ascertain the officer's motives to determine the "reasonableness" of the traffic stop. "But it is precisely because these motivations are beyond our purview that we must vigilantly ensure that officers' post-stop actions, which are properly within our reach, comport with the 4th Amendment's guarantee of reasonableness."

And, as a refresher, here's the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Can you say "yeah, but"?

And can you understand the difference between the conservatives and the neo-conservatives? Here's what Chuck Baldwin, a conservative, says about George W. Bush and the neo-conservatives:

"The Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, including arbitrary or de facto registration, general and unwarranted electronic surveillance, national computer databases, and national identification cards. Civil governments must be strictly limited in their powers to intrude upon the persons and private property of individual citizens, in particular, that no place be searched and no thing be seized, except upon proof of probable cause that a crime has been committed and the proper judicial warrant issued.

"America is engaged in an undeclared war with an ill-defined enemy (terrorism), a war which threatens to be never ending, and which is being used to vastly expand government power, particularly that of the executive branch, at the expense of the individual liberties of the American people. "The "war on terrorism" is serving as an excuse for the government to spend beyond its income, expand the Federal bureaucracy, and socialize the nation through taxpayer bailouts of the airlines, subsidies to the giant insurance corporations, and other Federal programs.

"I oppose any legislation and/or executive order, that deprives the people of their rights secured under the Fourth and Fifth Amendments under the guise of "combating terrorism" or "protecting national security." Examples of such legislation are the National Security Act, the USA PATRIOT Act, and the proposed Domestic Securities Enhancement Act (colloquially known as "Patriot II").

"I will oppose and vigorously support the movement already underway in many state legislatures to repeal the Real ID Act. The national ID card called for in the Real ID Act of 2005 is repressive, invasive, and unconstitutionally violative of the fourth amendment rights of the people. The "Real ID" has been unadvisedly promoted as a deterrent to terrorism and illegal immigration, but would not resolve either of those problems as evidenced by the fact that several of the September 11th hijackers used legitimate driver's license.

"American citizens should not be required to carry identification papers or be data based by the federal government. A Baldwin Presidency will put the United States on the road to becoming a free country once more!"

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