4th Circuit says we are a danger to everybody

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bignflnut
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Re: 4th Circuit says we are a danger to everybody

Post by bignflnut »

DontTreadOnMe wrote:
bignflnut wrote:Concealing a firearm does not make you a criminal.
No and this decision doesn't say that. There's a second part you keep ignoring.
Respectfully, that's actually the "nut" of it.
Criminals have had their Rights removed via due process. Citizens who are not criminals retain their Rights. Instead of properly arguing FOR the Rights of the People, government is advocating that People's Rights are limited/null when juxtaposed against Officer Safety.

Wynn is advocating that carrying a concealed weapon removes any 4th Amendment protection during a police encounter (aside from due process). The objection is that citizens should retain their Rights regardless of possession of a weapon/firearm, because they have not had their 4th Amendment Rights removed via fair trial/due process.

Still waiting for a response to the questions in the last post.
"What restrains the officer during a traffic stop from cuffing and searching all suspects (noting that "suspect" is a degraded form of "citizen / human", making the revocation of rights more palatable)? What Right has the citizen retained that may restrain an officer? Does this Right then disappear because of his/her possession of a firearm?"
“It’s not that we don’t have enough scoundrels to curse; it’s that we don’t have enough good men to curse them.”–G.K. Chesterton-Illustrated London News, 3-14-1908

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Re: 4th Circuit says we are a danger to everybody

Post by djthomas »

Philosophically I think the challenge some folks have is that the fourth amendment is one of the least absolute. We have the first amendment that states "Congress shall make no law..." but is nevertheless subject to time, place, and manner restrictions. The fourth gets even more weasely by specifically using the word "unreasonable" with respect to search and seizure.

The question is not whether or not someone loses their fourth amendment rights. One never loses that right, even as a convicted criminal. The question is whether a given intrusion is unreasonable under the circumstances. There is a very long and well established jurisprudence establishing what this means though it continues to be litigated on specific circumstances, as seen here. The reality is that the courts responsible for interpreting the Constitution have said that law enforcement officers may reasonably seize people and objects under certain circumstances without a warrant. This happens thousands of times every single day. You may have been seized, your property may have been taken from you (temporarily or permanently) but if it was a reasonable seizure then your fourth amendment rights were not violated, no matter how much you might think they have been. Nor, as a general matter, have you lost your fourth amendment rights.

From time to time the government overreaches and the courts properly sanction that behavior as part of the affected individual's due process rights.
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Re: 4th Circuit says we are a danger to everybody

Post by bignflnut »

djthomas wrote:Philosophically I think the challenge some folks have is that the fourth amendment is one of the least absolute. ... The fourth gets even more weasely by specifically using the word "unreasonable" with respect to search and seizure.

The question is not whether or not someone loses their fourth amendment rights. One never loses that right, even as a convicted criminal. The question is whether a given intrusion is unreasonable under the circumstances.
So the argument, if I understand it correctly, is that we toggle from "unreasonable" search to "reasonable". Wynn is suggesting that a firearm not in State possession moves the switch from un to on. At the risk of being repetitive, possession of an inanimate object should not determine one's legal status. This is an affront to RKBA, as it removes a protection from the citizen. DJThomas, I would like to agree with you, about not ever losing the protections of the 4th. My question would be who was protecting this citizen's 4th Amendment Right in that stop?

Seeing as how this court had recently upheld the 4th in Black, the difference seems to be the "tip" that was received (unless we accept Wynn's logic in full that any gun at any traffic stop warrants this search?). Our system of due process requires witnesses to testify under oath if they want a jury to consider the information they bring forth. As it stands today, recalling the Beavercreek Wal-Mart and Tamir Rice incidents, a well intention-ed citizen can give information that sends police racing to the scene with guns drawn, and lives an be ended based on these incomplete/inaccurate transfers of information. The cynic might say that any bar patron can be given $100 and a burner phone with instructions to call into the station and target an otherwise innocent citizen for any number of violations, which may cause said innocent citizen harm. There seems to be an extremely low bar to the quality of information, given without oath or affirmation (as required in the 4th), that moves the toggle from "unreasonable" to "how could we not".

While I appreciate the desire to prevent a crime from occurring in the first place (An argument has not been made that a crime was imminent.), neither A) an anonymous tip nor B) the presence of a gun not in civilian possession warrant (see what I did there?) moving away from "unreasonable searches and seizures".
“It’s not that we don’t have enough scoundrels to curse; it’s that we don’t have enough good men to curse them.”–G.K. Chesterton-Illustrated London News, 3-14-1908

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"Avarice, ambition, revenge and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." John Adams to Mass Militia 10-11-1798
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Re: 4th Circuit says we are a danger to everybody

Post by djthomas »

Just one minor point:
bignflnut wrote:Our system of due process requires witnesses to testify under oath if they want a jury to consider the information they bring forth.
And that is true as far as a criminal trial goes where the burden of proof is the highest. But we're not talking about what what happens at trial. We're talking about what happens long before that point. On the side of the road, if you will. A place where the adjudicators of the Fourth Amendment have shown a strong deference to the safety of those we direct to handle these situations.

Our system only requires that a law enforcement officer have reasonable suspicion to lawfully stop and detain a person. It then only requires probable cause to make an arrest. Neither of these standards require a witness to testify under oath and this is entirely consistent with the Fourth Amendment.

Is it unfortunate that people have died at the hands of law enforcement while detained for reasonable suspicion? Yes, of course it is, but on the whole the system works. When law enforcement is alerted to a potential crime in progress, officers are permitted to respond to the scene, investigate, and form an independent judgment of how to proceed within the bounds of the constitutional framework we have. Information received from a variety of sources may factor in to this plus what the officer(s) on scene observe. Perfect? No but a bad outcome in a specific situation does not necessarily mean a bad process.
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Re: 4th Circuit says we are a danger to everybody

Post by bignflnut »

djthomas wrote: And that is true as far as a criminal trial goes where the burden of proof is the highest. But we're not talking about what what happens at trial. We're talking about what happens long before that point. On the side of the road, if you will. A place where the adjudicators of the Fourth Amendment have shown a strong deference to the safety of those we direct to handle these situations.
Agreed. The legal community has "shown a strong deference to" Officer Safety over the Rights of the Citizen on the side of the road. The point is to show how some disagree with Wynn that this is just/appropriate/proper.

See, the law on the side of the road is just as applicable as it is in the courtroom. This idea that there are different laws depending on if you're on government property or in the presence of a government official is absurd. The law applies to all, equally, for the protection of the Rights of the People (does it matter where you're standing?). I recognize the natural reluctance of judges to rule "against" law-enforcement, far easier to grant new and exciting exemptions to the laws the rest of us need to follow under threat of ultimately lethal force isn't the role of the judiciary. Applying the laws equally, is the proper role of the judiciary.

For the life of me I fail to understand how people in the 2A community think that they're not the indirect (if not direct) targets of these rulings, and therefore justify them. The idea that when you step onto the hallowed ground of a hospital, school, government office, church, etc, you're gun-toting becomes felonious is not only outrageous, but hypocritical to the role that these places should play in service to the citizenry. Yet, we whistle along happily.
djthomas wrote:Our system only requires that a law enforcement officer have reasonable suspicion to lawfully stop and detain a person. It then only requires probable cause to make an arrest. Neither of these standards require a witness to testify under oath and this is entirely consistent with the Fourth Amendment.
Understood. Why do we require testimony to be under oath, punishable by perjury? Because we want to dis-incentivize/criminalize false testimony. But when anybody with a pulse can call and make a report that sends the armory to a certain location, we shrug our shoulders with a "meh"? Shouldn't there be a slightly higher standard when it comes to your previous idea that we're taking "unreasonable" off the table and now we allow search/seizure with impunity? Wouldn't that be more consistent with the principle we're invested in?
djthomas wrote:Is it unfortunate that people have died at the hands of law enforcement while detained for reasonable suspicion? Yes, of course it is, but on the whole the system works.
For whom?

Dismissing the death of innocent citizens because "on the whole the system works" would be just as tone deaf as dismissing/accepting the unfortunate death of a few cops by saying "on the whole the system works". Not an argument. But your comment does demonstrate how comfortable people are with Officer Safety > Citizen Liberty.
“It’s not that we don’t have enough scoundrels to curse; it’s that we don’t have enough good men to curse them.”–G.K. Chesterton-Illustrated London News, 3-14-1908

Republicans.Hate.You. See2020.

"Avarice, ambition, revenge and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." John Adams to Mass Militia 10-11-1798
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Re: 4th Circuit says we are a danger to everybody

Post by bignflnut »

djthomas wrote: Is it unfortunate that people have died at the hands of law enforcement while detained for reasonable suspicion? Yes, of course it is, but on the whole the system works. When law enforcement is alerted to a potential crime in progress, officers are permitted to respond to the scene, investigate, and form an independent judgment of how to proceed within the bounds of the constitutional framework we have. Information received from a variety of sources may factor in to this plus what the officer(s) on scene observe. Perfect? No but a bad outcome in a specific situation does not necessarily mean a bad process.
After responding to a report of a domestic incident on May 6 in Weirton, W.Va., then-Weirton police officer Stephen Mader found himself confronting an armed man.

Immediately, the training he had undergone as a Marine to look at “the whole person” in deciding if someone was a terrorist, as well as his situational police academy training, kicked in and he did not shoot.

SNIP

“I told him, ‘Put down the gun,’ and he’s like, ‘Just shoot me.’ And I told him, ‘I’m not going to shoot you brother.’ Then he starts flicking his wrist to get me to react to it.

“I thought I was going to be able to talk to him and deescalate it. I knew it was a suicide-by-cop” situation.

But just then, two other Weirton officers arrived on the scene, Mr. Williams walked toward them waving his gun — later found to be unloaded — between them and Mr. Mader, and one of them shot Mr. Williams’ in the back of the head just behind his right ear, killing him.

SNIP

In a meeting with the chief and City Manager Travis Blosser, Mr. Mader said Chief Alexander told him: “We’re putting you on administrative leave and we’re going to do an investigation to see if you are going to be an officer here. You put two other officers in danger.”

Mr. Mader said that “right then I said to him: ‘Look, I didn’t shoot him because he said, ‘Just shoot me.’ ”

On June 7, a Weirton officer delivered him a notice of termination letter dated June 6, which said by not shooting Mr. Williams he “failed to eliminate a threat.”
Seems like Mader wasn't allowed to make any further independent judgements on how to proceed. Seems like there's a bit of an institutional bias there against his independent judgements. Instead of being hailed as a hero, for SAVING a life, he was canned, for not taking it.

System works? For whom, on the whole?
When Wynn and others in the legal community insist on identifying citizens (be they in distress or otherwise law abiding) as "threats", they become hostile to their proper role as protectors of our Rights. I fail to comprehend how considering the citizen a "threat" when in police presence "works" for the citizen.

Here's a LEO friendly website regarding this:
We are indicted if we shot and fired if we don’t?
(Note, no author wanted to be attached to this one...)

How does that system work for the LEOs?

Please clarify.
“It’s not that we don’t have enough scoundrels to curse; it’s that we don’t have enough good men to curse them.”–G.K. Chesterton-Illustrated London News, 3-14-1908

Republicans.Hate.You. See2020.

"Avarice, ambition, revenge and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." John Adams to Mass Militia 10-11-1798
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