Nice Texas bill, one problem, LEO' dont want it.

[TonkinTwentyMil]

Then what?

Both DMF and Vernal45 make sound -- but diametrically-opposing -- points in this debate.

However, because some recent SCOTUS case rulings have tended to weaken our Fourth Amendment protections (vis-vis Police power), it may be time to see them strengthened a bit. One shouldn't be required to retain -- or be -- a lawyer just to secure his/her day-to-day Constitutional protections against random (albeit relatively rare) abuses of Police power.

While most of the examples cited bear upon the scourge of illicit narcotics traffic, let's just re-position this whole debate for a moment -- in the context of some future, gun-confiscatory political atmosphere (think Janet Reno and the Clintons, Act-II)... replete with Presidential Executive Orders and hotly-contested/close-vote/hostile-to-gun-owners legislation... AND federal agencies oh-so-eager to enforce "the will of Congress" even if a substantial minority opposes that "will" on Constitutional grounds. (After all, it's just their job.)

THEN what?

I encourage y'all to read (liberal) legal scholar Don Kate's 1979 classic "Restricting Handguns: The Liberal Skeptics Speak Out." A key point is that such weapons can never be effectively banned (in the U.S. -- not Canada, Europe, Japan, etc.) because of our unique FOURTH AMENDMENT protections. Kates even quotes a former ACLU chief who admitted this -- unless our 4-A rights are suspended, or seriously gutted -- and the ACLU opposes that, on principle.

Of course, while the ACLU will no doubt champion this proposed Texas legislation, their hypocracy on the firearms-rights issue is downright scary.
Accordingly, pro-gun rights folks are left to fight these slippery-slope games on their own. Politics maketh strange bedfellows, but I don't see 4-A sensitive "liberals" rushing to strengthen the 4-A on behalf of the NRA.

There's no doubt that Law Enforcement (who has a tough job anyway you slice it) could be more effective with diminished Search-and-Seizure protections, unlimited wiretaps (and, perhaps, even "Watch-Listing" certain outspoken gunnies and THR members, eh DMF?), etcetera.

And that's a Police State, folks. Works well in Singapore.

Thus, an interesting question for President Bush's judicial nominees might be: "Do you support watering-down 4-A rights to apprehend drug dealers... AND ALSO to more aggressively restrict gun-owners, as well?"

Something about giving up just a little bit of Liberty for a little more Safety... and deserving neither?

 

[DMF]

I don't like the number of self-proclaimed LEO's we have here(and on so many other boards lately) and I know for a fact and first hand knowledge that some sizeable percentage are fakes and that lessens the credibility of every one who claims any LEO background. For that reason I leave a lot of things from my own life in a fog but I'll go so far as to say this: I've been on every side possible of the law over the years and no, that's not how it works. That's how it is supposed to work. That's how it sometimes works. But too often that is not how it actually does work.

And lately it's working correctly less and less, or perhaps we merely have so much more interaction between police and other citizens today than previously that while the percentages remain close the total actual number of incidents with bad results of one degree or another has increased drastically. Either way I'll second gc70: all police searches should be involuntary. If that makes your job more difficult, well, find another line of work.

Even if you refuse to believe I'm a cop, the same can be said of your assertions that you know how it really works. Therefore, rather than take either of our word on it, everyone is left with real world examples of what happens when cops violate the fourth amendment. That is what do the courts say about it. Those verifiable incidents of what happens when the fourth amendment protections are violated support my side of this debate.

 

[DMF]

However, because some recent SCOTUS case rulings have tended to weaken our Fourth Amendment protections . . .

Actually with regard to voluntary consent, the case I cited here did not increase police powers, but rather smacked down cops for trying to intimidate people into giving "consent." The Supreme Court has always taken a dim view on cops coercing people into giving up their Constitutional protections.

 

[DMF]

Did you miss the pointed out item that people have to KNOW and UNDERSTAND this?

Nope didn't miss it a bit, but you obviously didn't read any of the links I posted. If you had you would have seen this:

The Court, however, has insisted that the burden is on the prosecution to prove the voluntariness of the consent and awareness of the right of choice.

(emphasis added)

Further it links to the decision in Bumper.

Again, since you don't believe I'm a cop and have experience in this, and I don't believe you have actual experience in this, we are stuck with verifiable cases of how this works in the real world. Those cases repeatedly say evidence will be suppressed, and cops can be held liable, if they do not actually get voluntary consent, and are able to prove that consent was voluntary.

 

[DMF]

I am wondering if DMF thinks these safeguards will protect a poor person, who can not afford an attorney to represent him to seek damages for a bad run in with an LEO.

If you have a good case against a cop for violating your rights, you will be able to find plenty of lawyers who will take the case either on contingency, or pro bono. Plenty of lawyers want to be the next Johnny Cochran.

 

[gc70]

DMF, by now we are all convinced of the technical legal correctness or your argument.

But could you give us some idea of the percentage of people who consent to 'voluntary' searches?

And could you please explain WHY anyone would consent to a 'voluntary' search?

 

[Vernal45]

If you have a good case against a cop for violating your rights, you will be able to find plenty of lawyers who will take the case either on contingency, or pro bono. Plenty of lawyers want to be the next Johnny Cochran.

YOU are missing my point. The behavior should not happen in the first place. This bill attempts to put it back the way it should be. A cop should always ask for consent to search, where PC is not established, and advise the citizen that he/she does not have to consent to said search. If LEO's had not abused the "mind if i search your vehicle" question, we would not need a bill like this.

4th amendment safeguards and court cases be damed, it happens everday, and even if it only happened once a year that someone got their rights violated, that is 1 time way to many...

 

[Vernal45]

And could you please explain WHY anyone would consent to a 'voluntary' search?

Becasue the shaved heads, BDU, sunglass wearing LEO's intimidate by mere presence. Or they use the CAN GET A WARRANT attitude. At any rate, this amounts to a power, a perk in the WOD, that needs to be curtailed, done away with IMO. And it is not sitting too well with LEO's. Some of there power is gone, and they may have to actually do there jobs by the book, instead of using a hunch.

 

[DMF]

Sorry, I don't have percentages, but lawyers regularly try to suppress consent searches, and confessions, especially if they have run out of other defenses. These things get scrutinized frequently.

As to why people do things like to consent to searches I have no idea. Innocent people often take the attitude of "hey it's only five minutes and I've got nothing to hide."

What makes the guilty ones do it, I'm not sure. Find a psychologist and ask them why, because I don't really know. Hey if I understood their "logic" maybe I could understand some of the stupid reasons (trust some of the reasons are VERY stupid) they give for committing crimes in the first place.

 

[nico]

So you have no idea why someone would allow an authority figure to search their car and think that "I'll go get a warrant" is coercion, while "I'll go apply for a warrant" isn't? That's exactly why this law is a good thing.

Sorry, but caselaw doesn't solve everything and requiring an officer to take a few minutes to fill out some paperwork to ensure everything is kosher is a much better alternative to forcing a person to go through the courts to get justice IMO.

 

[DMF]

YOU are missing my point.

I'm not missing your point at all. There are already well established consequences if a cop violates the fourth amendment.

A cop should always ask for consent to search, where PC is not established, and advise the citizen that he/she does not have to consent to said search.

Again, go back and read what I posted earlier. Those restrictions already exist.

Becasue the shaved heads, BDU, sunglass wearing LEO's intimidate by mere presence.

Well I don't have a shaved head, don't wear BDU's, and take my sunglasses off when talking to people. People still consent, despite my full head of hair, whether I'm in khakis and polo shirt, suit and tie, or jeans and a t-shirt. Anyway if a bald guy in sunglasses is enough to intimidate you, how do you get through a normal week, as I'm sure you come across many people who fit that description?

 

[Vernal45]

Anyway if a bald guy in sunglasses is enough to intimidate you, how do you get through a normal week, as I'm sure you come across many people who fit that description?

Nope, where I live, the ones with shaved heads, sun glasses are cops. When you ask them why the shaved head, and glasses, they will puff their chest out and reply "makes you look tough, helps intimidate".

 

[Vernal45]

Innocent people often take the attitude of "hey it's only five minutes and I've got nothing to hide."

That is so wrong. That is the reason for all of this distrust. "If you dont have anything to hide, let me search." I suspect that any innocent person, that has nothing to hide, would not want to be searched, but is intimidated into doing so.

 

[MikeB]

Many people have actually experienced the Police violate the law first hand. Which is why we sometimes think our rights are more important than the "powers" of the Police. For instance I was once kept on the side of the road in NJ for over an hour because "some guy back there wanted me". Eventually I was told I could leave and would get a ticket in the mail. When I asked if it was ok to ask what I had done, I was asked if I'd like to be arrested; and told that I would find out when I got my ticket or citation in the mail. Now then I never got that ticket in the mail and was never told why I was stopped. That's what I would consider a fishing expedition and at the very least an illegal detention. It shouldn't legally have been allowed, especially without some reason being given.

Personally I'm sorta against this law. Not because I don't believe that some giving back of rights to the citizens is necesary. It's because I believe previous laws, such as the bill of rights should be correctly interpreted in the courts and not require other laws to back them up. I suppose that might not be realistic. There should be very few actual laws, let's face it many many laws are reduntant and can even sometimes cause conflicting things to be illegal. We should minimize the required laws, not keep passing more and more of them until it's completely unclear exactly what the law is in a particular situation. After all; ignorance of the law isn't considered a defense, which is a complete joke with the various intricate firearms laws, never mind other laws on the books in this day and age.

Let me be clear here, as I've stated before in other threads although I believe there are some (a very small percentage) of bad cops, my opinions have little to do with the Police and even less with most LEO's. Probably 95% of my encounters with LEO's have been positive, including a few times I was being an idiot. My opinions have more to do with the interpretations of the laws, and the fact that actually getting compensated for being unlawfully detained, searched, harrassed, what have you by a LEO is slim to none. Their Unions in my opinion have to much power. I expect LEO's to use almost any tool given them. The problem I have is with the legality of some of those tools, not most LEO's.

 

[LawDog]

This law is a chance for a Texas legis-critter to get some face-time, nothing else.

Nothing is going to change.

I've worked as a LEO in Texas since 1993. Each and every department I've worked for has required citizens to sign consent forms before I am allowed to conduct a consent search, as do any departments and officers that I've spoken to.

It's a typical liberal legis-critter trick: Someone, somewhere is doing something without beign ordered to. Therefore, we must pass a law that orders you to do this thing that you were already doing. This is called progress in the murky world of politics.

*sigh*

LawDog

 

[nico]

I've worked as a LEO in Texas since 1993. Each and every department I've worked for has required citizens to sign consent forms before I am allowed to conduct a consent search, as do any departments and officers that I've spoken to.

if that's the case, then I agree this law is unneeded. BTW, I (and I would think others who voiced support for the law), believe that the politician pushing the law has nefarious motives. But, I don't think that should effect the status of a good law (although, given the above, this law doesn't sound so great anymore).

 

[TonkinTwentyMil]

DMF, your provocative and articulate arguments are a solid contribution to many of the best debates we have here.

However, I think you may be slighting Vernal45's valid point about why-do-we-need-lawyers (every time) to correct Police power abuses in the gray areas... when stronger laws proscribing such abuses would, arguably, diminish the need to always HIRE a lawyer in the first place.

Beyond that, his point about police "intimidation" tactics -- while an understandable "power-projection" stock-in-trade -- merits consideration, especially in light of the increasing (and well-documented) general "militarization" of the police... judging by their uniforms, SWAT-team "black" weapons, and other accoutrements. This kinda ties in to the "LEO Only" thread on today's THR "General" category, too.

I'm first-in-line to argue for modernizing various police weapons/tools, but perhaps the media's whining about "assault weapons" and evil black rifles, etc., has boomerang'd... and overly-sensitized much of the public to the image this stuff conveys -- on the receiving end -- especially when it's coupled with occasionally-4A- abusive tactics.

And what about such abuses when they spring from the motivations and offices of strongly-partisan -- or "bent" crooked -- political masters? Such stuff really DOES happen in the real world. (I won't mention any names here, because, ummm, Ah Feeyul They-er Paiyn.)

"Scandal begins when the police put a stop to it."
-- Karl Krauss, Austrian satirist (1874-1936)

"What will you do when evil men take office... when the whole gang is in collusion?"
-- Patrick Henry

If this new Texas law is unnecessary/over-reaction, do you think some new (not-yet-in-place) self-policing mechanism (short of ACLU-pushed litigation) is called for? For example, various medical associations (A.M.A., etc.) at least TRY to "police" their professional cohorts... though not very effectively. Hence: the flood of mal-practice lawsuits.

Action begets reaction.

 

[nico]

If this new Texas law is unnecessary/over-reaction, do you think some new (not-yet-in-place) self-policing mechanism (short of ACLU-pushed litigation) is called for? For example, various medical associations (A.M.A., etc.) at least TRY to "police" their professional cohorts... though not very effectively. Hence: the flood of mal-practice lawsuits.

you make a good point, but the flood of malpractice lawsuits is also due, in part, to the multitudes of sue-happy lawyers.

 

[LawDog]

For example, various medical associations (A.M.A., etc.) at least TRY to "police" their professional cohorts...

I don't think anyone in the AMA has ever had to sweat out an Internal Affairs investigation.

If this new Texas law is unnecessary/over-reaction,

As long as the Texas Legislature is working on this law, then that's time taken up that they could be using to pass some other law, so I guess this one isn't totally useless.

do you think some new (not-yet-in-place) self-policing mechanism (short of ACLU-pushed litigation) is called for?

For voluntary searches? Why? It's a self-correcting problem. The fist time Young Johnny Law doesn't get a signed consent, and then loses his case because he didn't get it signed, he'll get a signed consent each and every time thereafter.

LawDog

 

[garyk/nm]

Alduro, please do not take this as disrespect for the job that you do, but,

I've worked as a LEO in Texas since 1993. Each and every department I've worked for has required citizens to sign consent forms before I am allowed to conduct a consent search, as do any departments and officers that I've spoken to.

is exactly the reason this law is needed. Great, you got a signed consent, so all is good. The question remains, why would any rational person, who was not "feeling" coerced, sign such a form? Are you actively informing them that they have a right to refuse consent? And that such refusal can not be held against them? If you(and all LEOs) are, then I withdraw my question.

The proper answer to the consent question is "no, you may not search my (vehicle, person, home, whatever). If you have probable cause, get a warrant. I'll wait".

 

[Vernal45]

The fist time Young Johnny Law doesn't get a signed consent, and then loses his case because he didn't get it signed, he'll get a signed consent each and every time thereafter.

But when Johnny does that, he has violated someones rights, illegally detained them, publicly embarassed them, and cost them a run through the system, that should not happen, even once.

 

[DMF]

Beyond that, his point about police "intimidation" tactics -- while an understandable "power-projection" stock-in-trade -- merits consideration, especially in light of the increasing (and well-documented) general "militarization" of the police... judging by their uniforms, SWAT-team "black" weapons, and other accoutrements. This kinda ties in to the "LEO Only" thread on today's THR "General" category, too.

Interesting points but here's the problem. Even if we assume that there is a more intimidating LOOK to LEOs, which I don't think there is, but even if we assume that, then the people who make the argument that's a bad thing, should NOT be the same people who object to attacks on certain guns based on looking intimidating. I think it's a bogus argument to base either argument on looks anyway, but those who want to make that particular argument should at least be consistent about it. If someone thinks the 94 AWB was BS because it targeted weapons because of appearance, then those same people shouldn't care if a cop is bald or has sunglasses on.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

BTW, anyone here wear sunglasses, because they don't like the sun in their eyes? Anyone here ever shave their head because they've got a receding hair line, and figured totally bald was better than a comb over? Hmmm, there couldn't be any cops with those reasons for wearing sunglasses or being completely bald could there? How about a cop who suffers from alopecia? I guess God just made him genetically predisposed to being an intimidating JBT, right?

Now I'll give the classic line used when criticizing the AWB, or other dumbass legislation based on cosmetics, " . . . they're whining because it looks evil!"

 

[Vernal45]

they're whining because it looks evil!"

NO, we are pissed off because they are vioilating our rights, and being $$$holes.

 

[DMF]

But when Johnny does that, he has violated someones rights, and that should not happen, even once.

So you understand that there are restrictions against coercing someone to provide consent, you understand there are potentially severe consequences for the cops who do it, and you understand that despite that some dumbass cops do it anyway? Great, so then you would like an additional law prohibiting something which is already prohibited by the Constitution, and statute, and case law? Hmm, I could have sworn I've heard people on here say they were tired of the legislative bodies in this country enacting more laws, when there are already existing laws to punish people for certain acts. Maybe, I was wrong and those kinds of arguments were being made over on DU, not here?

 

[P95Carry]

I just wish I could see a conclusion possible to threads of this nature! Won't happen, without closure at some point!

Them - us - not much middle ground!

Ultimately there has to be a need to agree to disagree - cos sure as eggs ain't currency - there will never be a meeting of minds!

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

To add - to the astrologers amongst us - I am Pisces! I can see both sides of this equation!