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Author Topic: Privacy, Big Brother (State and Corporate) and the 4th & 9th Amendments  (Read 86619 times)
bigdog
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« Reply #300 on: May 19, 2011, 07:06:59 PM »

I only have the information you gave me, but based on that information: yes.

What I don't know is, among other things: who reported her (i.e., was it a p.o.'d ex to get back at her; was it someone with a history of calling "wolf" to the local PD, etc.); what was the age of the child (young depends in part on context); etc.

Reminder: the article I posted that led to this line of questioning specifically that the Indiana court decision "effectively means that officers may enter any residence without warrant, probable cause or permission of the owner."  It seems to me that you DID have probable cause. 

Again, the starting point is illegal entry, GM.  So, I am led to believe that you find no problems with police, who are government agents, illegally entering one's residence.  So much for the Bill of Rights, I guess. 
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G M
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« Reply #301 on: May 19, 2011, 07:18:28 PM »

What I don't know is, among other things: who reported her (i.e., was it a p.o.'d ex to get back at her; was it someone with a history of calling "wolf" to the local PD, etc.); what was the age of the child (young depends in part on context); etc.

Yeah, hopefully dispatch has made some determinations to that effect. When you catch a call like that, you often have very limited amounts of infomation while you run code to the location. Thus is the reality of police work.

Can you give me a scenario where you have a case of illegal entry by law enforcement and how self defense would provide an effective resolution to that?
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bigdog
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« Reply #302 on: May 20, 2011, 04:29:24 AM »

Yeah, hopefully dispatch has made some determinations to that effect. When you catch a call like that, you often have very limited amounts of infomation while you run code to the location. Thus is the reality of police work.

Can you give me a scenario where you have a case of illegal entry by law enforcement and how self defense would provide an effective resolution to that?

Hmmm, well you (plural) are gutsy to do that job.  That isn't much information to work on.  And please don't think I am trying to be disrespectful to the LEOs.  Not a chance.  You do good work, and I am honored to be friends with many.

I'd rather not try to come up with a hypothetical scenario.  I do know that any other situation that I can think of at this hour, whether or not I am able have an "effective resolution," I am able to legally act in self defense.  And that is what bothers me enough to have posted the original link. 
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G M
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« Reply #303 on: May 20, 2011, 07:42:49 AM »

Here is the problem, most people can't tell you who the vice president is and are pretty darn fuzzy on the rest of the facts about the constitution, laws and everything else about our system. I still have people tell me they think that shooting someone outside their home and then dragging the decendent inside and planting a knife in their hand is a good idea. This, after years of CSI: Wherever that has juries demanding forensic techniques that exist only in some screenwriter's imagination.

I don't think the idea floating around of using self defense on the police is going to work out well for either the public at large or law enforcement. There are already legal disincentives for police misconduct, and if those don't deter bad cops, the idea of "self defense" certainly won't.
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Crafty_Dog
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« Reply #304 on: May 20, 2011, 10:18:10 AM »

"There are already legal disincentives for police misconduct,"

which as a practical matter are often meaningless

"and if those don't deter bad cops,"

and sometimes they don't,

"the idea of "self defense" certainly won't."

If a rogue cop is attacking you, you have a right to defend yourself.   In the American Creed, our rights come from our Creator.  Amongst these rights is the right to self-defense.  It IS that simple.
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G M
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« Reply #305 on: May 20, 2011, 10:25:35 AM »

Can you cite any examples of lawful self defense against illegal police conduct in the US?
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Crafty_Dog
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« Reply #306 on: May 20, 2011, 10:58:55 AM »

No.

That said, it seems to me quite feasible that in such cases, no one have a motive to go public with it.


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G M
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« Reply #307 on: May 20, 2011, 11:00:52 AM »

Do you think that if you defend yourself against an officer you deem to be acting illegally, that he just goes on his way and nothing else comes from that?
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bigdog
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« Reply #308 on: May 20, 2011, 12:45:36 PM »

The article in question has to do with illegal searches, not what a private citizen "deems" to be an illegal search.  And at this point I would also like to note Guro's response above.
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G M
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« Reply #309 on: May 20, 2011, 01:21:09 PM »

Until someone in a black robe deems a legal or illegal search/seizure, how do we know it's status?
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bigdog
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« Reply #310 on: May 20, 2011, 03:56:00 PM »

Who is "we"?
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G M
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« Reply #311 on: May 20, 2011, 04:02:55 PM »

You, me, any other interested observer.

Until Terry v. Ohio was decided, was it possible to say with any assurance the legitimacy of Det. McFadden's stop and frisk of John Terry?
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Body-by-Guinness
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« Reply #312 on: May 20, 2011, 06:30:30 PM »

Can you cite any examples of lawful self defense against illegal police conduct in the US?

Randy Weaver comes close. Alas, in most instances he who writes the police report defines the legality of the conduct, and few citizens write police reports.
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G M
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« Reply #313 on: May 20, 2011, 06:36:52 PM »

Do you see Randy Weaver as some kind of hero? I don't. He was effective in hiding behind his wife and kids, I'll give him that.
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Body-by-Guinness
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« Reply #314 on: May 20, 2011, 09:28:13 PM »

Dude, don't ask questions if you don't want them answered, and if you get an answer that doesn't conform to your screed du jour how about if you respond to the point rather than sliding into the ad hominen?
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G M
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« Reply #315 on: May 20, 2011, 09:32:29 PM »

I'll agree with your point that whomever writes the report tends to shape the narrative in the legal proceeding.
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JDN
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« Reply #316 on: May 21, 2011, 10:29:16 AM »

Recently, I listened to a police interrogation on tape; then I read the report written by the detective.

"shape the narrative"?  The report was unbelievably one sided.  Another reason to say nothing until your attorney is there.
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G M
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« Reply #317 on: May 21, 2011, 11:22:57 AM »

Recently, I listened to a police interrogation on tape; then I read the report written by the detective.

"shape the narrative"?  The report was unbelievably one sided.  Another reason to say nothing until your attorney is there.

That detective will get toasted by any semi-compitent defense atty with the report and tape.
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bigdog
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« Reply #318 on: May 21, 2011, 12:58:12 PM »

You, me, any other interested observer.

Until Terry v. Ohio was decided, was it possible to say with any assurance the legitimacy of Det. McFadden's stop and frisk of John Terry?

I just don't understand the way that you obfuscate the issues at hand, GM.  The question is the rights of people to resist illegal entry into their home.  I seriously think that sometimes you don't read carefully.  Or do you just make [stuff] up?  Or do you just keep going and going like the bunny with nowhere to go? 
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G M
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« Reply #319 on: May 21, 2011, 03:48:58 PM »

Please cite some case law that is more relevant then. Terry v. Ohio was pretty important search and seizure case law that codified "stop and frisk" methods for LE.
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Crafty_Dog
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« Reply #320 on: May 21, 2011, 03:54:07 PM »

Well Terry is relevant to making the point that it is not always known what the law is until after the fact, but still the question presented remains.
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G M
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« Reply #321 on: May 21, 2011, 04:13:33 PM »

In US legal history, there are police methods that were struck down by the courts that had been a historic standard practice in law enforcement. The 60's/70's had lots of profound limitations placed on police that hadn't existed before.

The use of force, including deadly force on fleeing felons dates back hundred of years to England's common law, but ended here in 1985. When that Memphis Officer shot Garner, he was acting in compliance with both Tenn. state law and MPD policy. It was reasonable to believe it was a lawful seizure given those circumstances, the SCOTUS disagreed.

So, even if the officer acts in good faith and in compliance with dept. policy and state law doesn't mean those actions will ultimately be ruled lawful by the court.
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Crafty_Dog
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« Reply #322 on: May 21, 2011, 06:14:03 PM »

OK, but not sure how that connects to the question presented , , ,
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G M
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« Reply #323 on: May 21, 2011, 06:23:19 PM »


So, even if the officer acts in good faith and in compliance with dept. policy and state law doesn't mean those actions will ultimately be ruled lawful by the court.

Unless/until someone in a black robe gives the thumbs up/thumbs down on an officer's actions, how does the officer or the person who in the heat of the moment believes the officer's entrance into their home is illegal, know if the entry is legal or not? Under exegent circumstances that might justify a warrantless entry, the officer/s are probably not going to sit down with the resident and debate the point over a cup of chai.
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G M
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« Reply #324 on: May 21, 2011, 07:20:31 PM »

Would this situation have been improved by the plaintiffs using force against the officers?

http://www.sdsheriff.net/legalupdates/docs/0411.pdf

Huff v. City of Burbank (9th Cir. Jan. 11, 2011) 632 F.3rd 539

Rule: A non-consensual, warrantless entry into a residence cannot be justified by an
unsubstantiated rumor.

Facts: Burbank Police Officers responded to a high school to investigate a report by the
principal concerning rumors that a student, Vincent Huff, had written a letter threatening
to “shoot up” the school. Principal Sister Milner, concerned about the safety of her
students, asked the officers to investigate. Several other students were interviewed, but
the officers couldn’t verify the existence of such a letter. Vincent hadn’t been at school
for two days. So they decided to go to Vincent’s home where he lived with his parents,
George and Maria. At the Huff residence, no one responded when the officers knocked
at the door and announced their presence. The officers called the residence by telephone,
but no one answered. They then called Maria’s cell phone. Maria answered. Informed
that the officers wished to talk to her and her son, she hung up on them. Two minutes
later, Maria and Vincent came out on the front steps. When the officers told them that
they were there investigating some threats at the school, Vincent responded; “I can’t
believe you’re here for that.” Maria was asked if they could go inside to talk, to which
Maria responded; “No,” not without a warrant. Asked if there were any guns in the
home, Maria avoided the question and responded that she would get her husband. She
then turned and went into the house. One of the officers followed her in. Vincent and a
second officer also went inside. One of the officers testified to making entry into the
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house out of concern for their safety. Two other officers entered the house after
everyone else. The officers all remained in the living room as George entered the room
and challenged their authority for being there. After a five to ten minute conversation in
the living room, upon satisfying themselves that the rumors about shooting up the school
were false, the officers all left. The Huffs thereafter sued the Burbank Police Department
and the officers involved in federal court. The trial court found for the civil defendants
after a two-day bench trial. The Plaintiff Huffs appealed.

Held: The Ninth Circuit Court of Appeal reversed. The issue on appeal was whether
upon making the warrantless entry into the Huff’s residence, the officers had probable
cause and exigent circumstances. The Ninth Circuit ruled that they had neither and that
the entry into the Huff residence was done in violation of the Fourth Amendment.
Likening the officers’ entry of the Huff home to an entry done for the purpose of
conducting a warrantless search, the Court held that such an entry is lawful only when
officers have “a reasonable belief that their entry is necessary to prevent physical harm to
the officers or other persons, the destruction of relevant evidence, the escape of the
suspect, or some other consequence improperly frustrating legitimate law enforcement
efforts.” The Court interpreted this requirement as requiring “probable cause.” But you
can’t justify probable cause on information that amounts to no more than an
unsubstantiated rumor. Secondly, even if the officers had probable cause, there must also
be “exigent circumstances” requiring an immediate entry. The exigent circumstances
argued here by the civil defendants was for the safety of the officers or the occupants of
the house. The civil defendants (i.e., officers) argued that, in addition to the rumor
concerning Vincent possibly threatening to shoot up the school, the following facts were
sufficient to warrant a finding of exigent circumstances: (1) The unusual behavior of the
parents in not answering the door or the telephone; (2) Maria hanging up on the officers
when they finally reached her on her cell phone; (3) Maria not inquiring about the reason
for their visit or expressing concern that they were investigating her son; (4) Maria
refusing to tell the officers whether there were any guns in the house; and (5) Maria
running back into the house while being questioned about the possible presence of
firearms. These facts, per the Court, amounted to no more than “speculation” on the part
of the officers that their safety was in jeopardy. Lastly, the Court noted that although not
argued by the civil defendants, the “emergency circumstances” theory also fails to justify
a warrantless entry into the home. “Emergency circumstances,” allowing for a
warrantless entry into a residence, may be found when officers reasonably believe entry
is necessary to protect or preserve life or avoid serious injury. “Probable cause” is not
necessary. But the officers must have “some reasonable basis, approximating probable
cause, to associate the emergency with the area or place to be searched.” In this case the
Court found that there was “no objectively reasonable basis for concluding that there was
an immediate need to protect others or themselves from serious harm.” The entry of the
house, therefore, was in violation of the Fourth Amendment, providing the Huffs with a
cause of action for civil damages.
Note: This case is so screwy, and so wrong, that I almost didn’t brief it. In justifying
their belief that the entry into the house was illegal, the Court wanders through all sorts of
irrelevant legal theories, using tests and factors applicable to searches. Although this
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case involved a warrantless entry into a residence, it did not involve a search. Same
constitutional amendment—the Fourth—but different problem altogether. This case
involved officers trying to protect themselves while responding to a situation reportedly
involving firearms. Although I don’t have a case directly on point supporting my
argument, it seems to me that if an officer can pat a person down for weapons based upon
no more than a “reasonable suspicion,” then they should be allowed to follow an
uncooperative homeowner into the house under circumstances that would lead any
reasonable officer to believe that she just might be intending to fetch a firearm. The
United States Supreme Court has already rejected the Ninth Circuits attempts to fit
potentially dangerous situations into neat little categories meant for searches. In Brigham
City v. Stuart (2006) 547 U.S. 398, the High Court upheld a warrantless residential entry
in a case involving “an objectively reasonable basis for believing” that someone may
suffer serious injury if an immediate entry is not made. As for the dangerousness of the
situation in the Huff case, the Court failed to mention Vincent’s very telling remark; “I
can’t believe you’re here for that.” While this might very well be interpreted as
Vincent’s denial that he ever intended a threat, it also serves as validation for the
argument that he did in fact say or write something that could be interpreted as a threat to
shoot up his school. So were the officers, while responding to a report potentially
involving firearms and a threatened school shooting, when confronted by some very
uncooperative parents of the potential shooter, justifiably concerned for their own safety
when the parent suddenly decided to disappear back into her house during an inquiry
about weapons? In my humble opinion; you betcha!
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bigdog
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« Reply #325 on: May 22, 2011, 05:09:47 AM »

I wear a black robe, at least ocasionally.  I am excited that I get to play a role in making these types of decisions.   cool

I think that you give too much credit to the USSC (or perhaps rely too much) assuming that is the court you meant when you stated that "even if the officer acts in good faith and in compliance with dept. policy and state law doesn't mean those actions will ultimately be ruled lawful by the court."  Given that the USSC currently hears about .01% of the cases that are appealled to it, and not all of them relate to police actions, the odds aren't all that good that a particular police action will be reviewed by the highest court.  

The basis for the Fourth Amendment, which has its basis in English Common Law, as does most of American law:
"The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!" William Pitt

As for a list of cases, here you go:


John Bad Elk v. United States, 177 U.S. 529 (1900):
Held, that the court clearly erred in charging that the policemen had the right to arrest the plaintiff in error and to use such force as was necessary to accomplish the arrest, and that the plaintiff in error had no right to resist it.

At common law, if a party resisted arrest by an officer without warrant, and who had no right to arrest him, and if, in the course of that resistance, the officer was killed, the offence of the party resisting arrest would be reduced from what would have been murder, if the officer had had the right to arrest, to manslaughter.

"If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest."

United States v. Di Re, 332 U.S. 581 (1948): "One has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases."

Miller v. United States, 357 U.S. 301 (1958): Held: petitioner could not lawfully be arrested in his home by officers breaking in without first giving him notice of their authority and purpose...

PAYTON V. NEW YORK, 445 U. S. 573 (1980): Held: The Fourth Amendment, made applicable to the States by the Fourteenth Amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest. Pp. 445 U. S. 583-603.


And here is some commentary on the Indiana Supreme Court decision.

http://www.lewrockwell.com/blog/lewrw/archives/88027.html
An interesting line, and one that speaks to your line of thinking, in discussing the Indiana case with a Michigan case: "In the interests of brevity, these rulings should be consolidated under the name “Rapist Doctrine,” in recognition of the fact that are pseudo-scholarly versions of the advice once urged upon women enduring sexual assault: Don’t resist — it will only make things worse."

http://www.libertyflorida.org/?p=563

Even the home schoolers are concerned: http://www.hslda.org/hs/state/in/201105180.asp


And, some commentary on the right to resist unlawful arrest/entry in general:

http://cad.sagepub.com/content/46/4/472.short ("attacks on the common law right are based on a misunderstanding of the original justifications for the right and that there remains a great need for the right particularly as new police tactics increase the probability of arbitrary assertions of authority."


http://www.markmccoy.com/self-defense.html: This site also has many other cases you can look at if you wish.










« Last Edit: May 22, 2011, 06:32:20 AM by bigdog » Logged
G M
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« Reply #326 on: May 22, 2011, 06:46:24 AM »

I think that you give too much credit to the USSC, or rely too much is better wording, assuming that is the court you meant when you stated that "even if the officer acts in good faith and in compliance with dept. policy and state law doesn't mean those actions will ultimately be ruled lawful by the court."  Given that the USSC currently hears about .01% of the cases that are appealled to it, and not all of them relate to police actions, the odds aren't all that good that a particular police action will be reviewed by the highest court. 


I get that very few cases go in front of the supremes. However, every police action has the potential for some level of judicial review. Just because a officer acts in good faith and in compliance with dept. policy and state law does not mean the officer's actions will be upheld by a court.
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G M
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« Reply #327 on: May 22, 2011, 12:25:01 PM »

http://www.lewrockwell.com/blog/lewrw/archives/88027.html
An interesting line, and one that speaks to your line of thinking, in discussing the Indiana case with a Michigan case: "In the interests of brevity, these rulings should be consolidated under the name “Rapist Doctrine,” in recognition of the fact that are pseudo-scholarly versions of the advice once urged upon women enduring sexual assault: Don’t resist — it will only make things worse."

I'm not sure I'd want to cite anything from Lew Rockwell.


http://reason.com/archives/2008/01/16/who-wrote-ron-pauls-newsletter

Who Wrote Ron Paul's Newsletters?

Libertarian movement veterans, and a Paul campaign staffer, say it was "paleolibertarian" strategist Lew Rockwell

Julian Sanchez & David Weigel | January 16, 2008


 



Ron Paul doesn't seem to know much about his own newsletters. The libertarian-leaning presidential candidate says he was unaware, in the late 1980s and early 1990s, of the bigoted rhetoric about African Americans and gays that was appearing under his name. He told CNN last week that he still has "no idea" who might have written inflammatory comments such as "Order was only restored in L.A. when it came time for the blacks to pick up their welfare checks"—statements he now repudiates. Yet in interviews with reason, a half-dozen longtime libertarian activists—including some still close to Paul—all named the same man as Paul's chief ghostwriter: Ludwig von Mises Institute founder Llewellyn Rockwell, Jr.
 
Financial records from 1985 and 2001 show that Rockwell, Paul's congressional chief of staff from 1978 to 1982, was a vice president of Ron Paul & Associates, the corporation that published the Ron Paul Political Report and the Ron Paul Survival Report. The company was dissolved in 2001. During the period when the most incendiary items appeared—roughly 1989 to 1994—Rockwell and the prominent libertarian theorist Murray Rothbard championed an open strategy of exploiting racial and class resentment to build a coalition with populist "paleoconservatives," producing a flurry of articles and manifestos whose racially charged talking points and vocabulary mirrored the controversial Paul newsletters recently unearthed by The New Republic. To this day Rockwell remains a friend and advisor to Paul—accompanying him to major media appearances; promoting his candidacy on the LewRockwell.com blog; publishing his books; and peddling an array of the avuncular Texas congressman's recent writings and audio recordings.
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bigdog
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« Reply #328 on: May 22, 2011, 08:23:06 PM »

Just because someone is wrong about some things doesn't make him wrong about everything. 
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G M
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« Reply #329 on: May 22, 2011, 08:40:54 PM »

I must confess I'm a bit confused about your takes on some positions, Bigdog. I'm I recall correctly, it's your position OBL should have been arrested (if possible) and given the due process of law, right? Yet an American police officer accused of misconduct shouldn't at least get the same?

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bigdog
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« Reply #330 on: May 22, 2011, 09:05:53 PM »

Why wouldn't an American police officer accused of misconduct not be given the due process of law? 

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G M
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« Reply #331 on: May 22, 2011, 09:10:48 PM »

Well, if he or she is killed by someone who thinks that they have that right because they deem the officer to have entered their residence illegally.
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bigdog
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« Reply #332 on: May 22, 2011, 09:17:56 PM »

I wish you wouldn't put words in my mouth.  I never said that there was some kind of carte blanche right to off police officers, or anyone else.  Good grief.  In fact, if you look at a few posts back, you will see this included there too:

John Bad Elk v. United States

"If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest."


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G M
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« Reply #333 on: May 22, 2011, 09:21:25 PM »


"If the officer had no right to arrest, the other party might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest."

Ok BD, how would a reasonable person determine if an officer's attempt to arrest was legal or illegal?
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bigdog
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« Reply #334 on: May 23, 2011, 05:19:02 AM »

GM, you suggested one way that "a reasonable person" could "determine if an officer's attempt to arrest was legal or illegal."  Moreover, your point a few days ago about the ignorance of the average man about who is VP, and what is in the Constitution, etc. is true up to a point.  There are many, many who are far less ignorant about the law than the average.  So, perhaps it is reasonable to expect that some people know what the law is.  Or perhaps, it is reasonable to expect that everyone should become more educated about the Constitution and the laws of their state.

Can I safely say that you believe in a living Constitution, since you seem to think that we can't possibly know when entry is illegal before we go to a court of law?  Is it true that the 4th Amendment is just a guide, but given that there have been changes made to police techniques and with new technologies, we can disregard the original intent of the Framers and/or the 700 years of precedent (including the common law tradition that is the basis of our legal system)?  Will you be voting for President Obama's reelection?   

How in the heat of the moment are you going to determine if the entry by the officers is legal or illegal? in that moment, how are you going to calibrate your use of force for those circumstances?

If one ever needs to determine LE status, 9-1-1 is the place to start, see what dispatch says.

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Crafty_Dog
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« Reply #335 on: May 23, 2011, 06:42:14 AM »

A momentary tangent:

"Just because someone is wrong about some things doesn't make him wrong about everything."

Certainly this is true, but I for one prefer to note it when there are notorious aspects to someone I quote.

End of tangent. 

Carry on.
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bigdog
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« Reply #336 on: May 23, 2011, 07:01:07 AM »

I am certainly willing to note that.  I must, I confess, plead ignorance to his notorious side before being edified by GM. 
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Crafty_Dog
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« Reply #337 on: May 23, 2011, 10:21:22 AM »

Indeed, I too learned of the Rockwell-Rothbard nexus and its ugly concepts thanks to GM.

Returning to the subject at hand, I emailed Mitch Vilos, the author of the "Self-Defense Law in the 50 States" book which we carry in our catalog (also, see the relevant thread on the Martial Arts forum) the URL of this thread.  Given his unusually extensive research in this area, I was curious for his input, which he was kind enough to give:

Here it is:

You notice that we did not address this as part of our template for each
state because we felt it was not something that most people would ever have
to consider or anticipate.  But, that said, we did come across states that
addressed the issue and as I recall, Indiana was not the only state that had
statutes indicating that citizens are not justified in resisting an unlawful
arrest or entry. 

With the disclaimer that I haven't researched it extensively (for reasons
given above), my guess is that this is a huge "thumbs down" factor in any
case.  If you resist and bad things happen to a police officer, it's going
to result in arrest, prosecution and possible conviction just because there
tends to be a belief by most potential jurors that policemen can do no wrong
(with some inner city exceptions, of course).  Remember, Texas has a strong
home defense statute.  But one of the thumbs down factors in the home is if
the intruder is a child.  Reference the Texas thumbs down case (Gonzales as
I recall) where the Texas trailer owner shot and killed one of several young
teens in his trailer to steal candy.  He was arrested, tried and finally
acquitted, but nevertheless had to endure a life-changing experience.  I
suspect that is going to be the way it will be for using or threatening
deadly force against a LEO in most cases. Same with spousal shootings
(Chapter 13).  Unless the battered wife gets out of the home, if she shoots
her husband in her own home, she will be arrested and prosecuted.  She is
seldom acquitted.   

A horrible outgrowth of this issue is going to be home invasions where the
invaders pose as cops.  The more this happens, the more homeowners will
shoot to kill no matter that whoever enters is screaming, "police, get
down!!! Hands where we can see them!!!!!"  One clue to a real cop entry
might be the "flash-bang."  I suspect we'll see more severe penalties for
impersonating LEOs during home invasions for this very reason.  It makes the
entry more and more dangerous for the real LEOs.  Unfortunately Indiana's
removal of right to resist unlawful police entry gives a signal to home
invaders that impersonating SWAT no knock entries will be the key to
success. 

One corollary.  The more home invaders impersonate officers, the less likely
a defending citizen will be convicted for using force against unlawful
entries where there is a "reasonable man" standard for self-defense. But
that won't keep citizens from being arrested and prosecuted for using force
against officers even in the event of an unlawful entry. 

Hope this gives some helpful insight into the issue.  Mitch



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G M
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« Reply #338 on: May 23, 2011, 11:26:57 AM »

Well said by Mitch.

Here is the ugly reality, when guns come out, shiite gets real dangerous. This applys to both LEOs and armed citizens. Off duty, plain clothes cops have been shot by uniformed officers responding to a "man with a gun" call. One can have the best intentions in the world and still end up as the shooter or shootee of a blue on blue fatality.

Even best case scenario in a general citizen self-defense shooting or LEO line of duty use of deadly force, the best you can hope for is to keep everything you had at the moment you pressed the trigger. Meaning your life, your freedom, your career, your marriage, your assets.

If you are a citizen, and using force against a LEO, the odds of this turning out well for you is slim and none. Handing violent resistance to arrest is something cops are trained and equipped to do. Both policy and caselaw allow officers to use more force than is being used against them. LEOs are trained and empowered to use whatever force is required to win, including deadly force, if needed.

BD, you asked if I believed in a "living constitution". I'm not sure how to best answer this. I believe that the constitution is our framework and the intent of the founders is very important. I also think the founders intended for there to be law enforcement, and for there to be a common sense balance between individual rights and public safety. I'm most interested in finding that pragmatic sweet spot between either extreme that maximizes individual freedom while having a safe society.
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bigdog
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« Reply #339 on: May 23, 2011, 01:33:44 PM »

"If you are a citizen, and using force against a LEO, the odds of this turning out well for you is slim and none."

With this I completely agree.  And court decisions that gut the 4th amendment protections offered in the Bill of Rights, a series of amendments made becuase of the fear of an over reaching government, don't help this. 
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Crafty_Dog
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« Reply #340 on: May 23, 2011, 01:47:32 PM »

Speaking of which, this from today's LA Times-- a source which I often mock-- but here it reads rather well:

May 23, 2011
One of the most important functions of the Supreme Court is to put legal limits on police excesses. But the court failed to fulfill that responsibility last week when it widened a loophole in the requirement that police obtain a warrant before searching a home.

The 8-1 decision came in the case of a search of an apartment in Kentucky by police who suspected illegal drugs were being destroyed. The police, who said they smelled marijuana near the apartment, had knocked loudly on the door and shouted, "This is the police." Then, after hearing noises they thought indicated the destruction of evidence, they broke down the door.

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XScrutinizing Wal-Mart
 Police don't need a warrant to enter a residence when there are "exigent circumstances," such as imminent danger, the possibility that a suspect will escape or concern about the immediate destruction of evidence. But in this case, the police actually created the exigent circumstances that they then capitalized on to conduct the warrantless search.

According to Kentucky's Supreme Court, the exigent-circumstances exception didn't apply because the police should have foreseen that their conduct would lead the occupants of the apartment to destroy evidence. Overturning that finding, Justice Samuel A. Alito Jr. wrote for the court that as long as the police officers' behavior was lawful, the fact that it produced an exigent circumstance didn't violate the Constitution. That would be the case, Alito suggested, even if a police officer acted in bad faith in an attempt to evade the warrant requirement.

But as Justice Ruth Bader Ginsburg pointed out in her dissent, Alito's reasoning "arms the police with a way routinely to dishonor the 4th Amendment's warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant."

Ginsburg also dismissed the argument that entering the apartment in the Kentucky case was necessary to prevent the destruction of drug evidence. Quoting the majority opinion, she wrote that "persons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police." Therefore, police can take the time to obtain a warrant.

Allowing police to create an exception to the warrant requirement violates the 4th Amendment. That is how the court should have ruled.
Copyright © 2011, Los Angeles Times
     ShareNew(2)
« Previous Story More Editorials Next Story »  To fix California's budget, we need taxes too Cellphones: Quieting the public nuisances
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Comments (2)Add / View comments | Discussion FAQ
Kiljoy616 at 9:33 AM May 23, 2011
The Constitution a nice idea that is slowly dying out one piece at a time.
southerncalifornia.republican at 12:13 AM May 23, 2011
Finally! An editorial that I completely, 100% agree with. In this case, the court was wrong.


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G M
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« Reply #341 on: May 23, 2011, 02:20:30 PM »

Speaking of which, this from today's LA Times-- a source which I often mock-- but here it reads rather well:
Stick with the instinct to mock the Left Angeles Times, it'll always serve you well.



http://www.llrmi.com/articles/legal_update/2011_us_king.shtml
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bigdog
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« Reply #342 on: May 23, 2011, 09:31:14 PM »

Some interesting analysis on the King opinion:

http://reason.com/blog/2011/05/23/the-supreme-courts-advice-abou

http://www.scotusblog.com/?p=119933

http://volokh.com/2011/05/19/common-misreadings-of-kentucky-v-king-and-the-difference-between-exigent-circumstances-and-police-created-exigencies/

http://www.cato-at-liberty.org/kentucky-v-king/

http://www.utahdefenders.com/kentucky-v-king-good-for-utah-police-bad-for-our-liberties/
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G M
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« Reply #343 on: May 24, 2011, 08:17:35 AM »

Orin Kerr pretty much hammers all the other commenters in his piece on this ruling.

Utahdefenders? Not only was that the lamest bit on the topic, they sound like a superhero group from South Park.  grin
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bigdog
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« Reply #344 on: May 24, 2011, 08:37:58 AM »


Utahdefenders? Not only was that the lamest bit on the topic, they sound like a superhero group from South Park.  grin

Agreed on both counts.  And I love the South Park comparison! 
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G M
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« Reply #345 on: May 24, 2011, 09:01:08 AM »

Speaking of Orin Kerr and the 4th, care to take a crack at this, BD?
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=976296

Four Models of Fourth Amendment Protection

Orin S. Kerr
George Washington University - Law School



Stanford Law Review, Vol. 60, 2007
GWU Law School Public Law Research Paper No. 246
GWU Legal Studies Research Paper No. 246


Abstract:     
The Fourth Amendment protects reasonable expectations of privacy, but the Supreme Court has refused to provide a consistent explanation for what makes an expectation of privacy reasonable. The Court's refusal has disappointed scholars and frustrated students for four decades. This article explains why the Supreme Court cannot provide an answer: No one test can accurately and consistently distinguish less troublesome police practices that do not require Fourth Amendment oversight from more troublesome police practices that are reasonable only if the police have a warrant or compelling circumstances. Instead of endorsing one single approach, the Supreme Court uses four different tests at the same time. There are four models of Fourth Amendment protection: a probabilistic model, a private facts model, a positive law model, and a policy model. The use of multiple models has a major advantage over a singular approach, as it allows the courts to use different approaches in different contexts depending on which can most accurately and consistently identify practices that need Fourth Amendment regulation.
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Crafty_Dog
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« Reply #346 on: May 24, 2011, 10:18:29 AM »

"In her dissent, Justice Ginsburg contends that the Court’s decision “arms police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases”; in a largely rhetorical question, she also asks whether our homes will actually remain secure “if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity[.]”  To maintain the protections of the Fourth Amendment, she argues, the exigent circumstances must exist “when the police come on the scene, not subsequent to their arrival, prompted by their own conduct.”

"Justice Ginsburg notes that if the police had not knocked, no evidence would have been destroyed; she emphasizes that even the Court’s opinion concedes that “[p]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police,” and here the suspects would not have anticipated police discovery but for the knock.  The police could have posted officers outside the apartment while obtaining a warrant for entry because there was “very little risk” that the evidence would have been destroyed while awaiting a warrant."

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G M
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« Reply #347 on: May 24, 2011, 10:30:29 AM »

The Queen-Mother of the ACLU dissents? No way!  shocked

Well, what she leaves out is the totality of the circumstances.

If the facts of the case were that the police in the case just happened to knock at a door, hear sounds of things moving inside and then make a forcible entry based on that alone, then her dissent might make sense. This is only a small portion of the facts at the moment that influenced the decisionmaking of those officers in this case.
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Crafty_Dog
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« Reply #348 on: May 24, 2011, 10:38:51 AM »

There are LOTS of circumstances well within the law which will induce people to start moving around when there is a loud knocking on the door of "Its the police!!!

As noted, there was time for a warrant.

" here the suspects would not have anticipated police discovery but for the knock.  The police could have posted officers outside the apartment while obtaining a warrant for entry because there was “very little risk” that the evidence would have been destroyed while awaiting a warrant."

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G M
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« Reply #349 on: May 24, 2011, 10:48:47 AM »

The officers were chasing a suspect that ran into one of two apartments. There was an odor of marijuana present. If it was reasonable to wait for a warrant, then what circumstances would you find reasonable to enter without a warrant to prevent the destruction of evidence?
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