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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. Amendment IV, U.S. Constitution

Democrats and the Biden administration would like to seize Americans firearms, apparently by any means necessary. It remains to be seen if the U.S. Supreme Court will collaborate with them.

On March 24, the U.S. Supreme Court began hearing arguments in Caniglia v. Strom. The case arises from a 2015 incident in Cranston, Rhode Island, where police were summoned to do a wellness check on Edward Caniglia after his wife reported that he might be suicidal. While Caniglia was arguing with her, he put an unloaded gun on the table and told her to shoot me now and get it over with. She responded by calling a non-emergency number, and the police arrived in short order. While at the scene, the police disagreed about whether Mr. Caniglia was acting normal or agitated, but they convinced him to take an ambulance to the local hospital for evaluation. The police did not go with him.

While he was en route, his wife told the police he kept two handguns in the house. Without first obtaining a warrant, police conducted a search of the house after obtaining Mrs. Caniglias permission by lying and saying her husband consented to the search. They found two guns and seized them. Mr. Caniglia sued, asserting police had violated his Fourth Amendment rights as well as his Second Amendment right to own firearms for self-protection.

The First Circuit Court of Appeals sided with police, citing the community care taking doctrine that has already been recognized as an exception to the Fourth Amendment by the United States Supreme Courts 1973 decision in Cady v. Dombrowski. In that case, the Court held that police officers did not violate the Fourth Amendment when they searched the trunk of a car that had been towed following an accident.The Court acknowledged that police cannot search private property without consent or a warrant, except in certain carefully defined classes of cases. Yet it further noted that there is a constitutional difference between houses and cars.

A host of cases used that ruling to establish the doctrine of community caretaking, which Cady had defined as activities totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. In short, if a police officer might reasonably decide a warrantless search could prevent the community from being endangered, that search was constitutional.

That kind of search was related to vehicles. Caniglia v. Strom is about whether or not it can be extended to homes.

The First Circuit Court of Appeals certainly thought so. At its core, the court wrote, the community caretaking doctrine is designed to give police elbow room to take appropriate action when unforeseen circumstances present some transient hazard that requires immediate attention. Understanding the core purpose of the doctrine leads inexorably to the conclusion that it should not be limited to the motor vehicle context. Threats to individual and community safety are not confined to the highways.

That giving cops such elbow room makes an utter mockery of the right of the people to be secure in their persons, houses, papers, and effects? As Forbes columnist Evan Gerstmann points out, The community caretaking exception is not limited to circumstances where there is no time to apply for a warrant.

In other words, immediate attention and transient hazard are extremely malleable terms. Police can simply decide at their leisure that an emergency has come into existence, thereby negating the need for a warrant. Thus, Gerstmann wonders, will police be able to conduct warrantless searches of political protesters homes to make sure they arent planning on violent behavior at their next political rally?

Political protesters, or Americans who disagree with the policies of the Biden administration or those who simply disagree with progressive dogma?

As were are learning, courtesy of a ruling by the U.S. Court of Appeals for the District of Columbia Circuit, political considerations already motivate the U.S. Justice Department. According to the panel, the DOJ abused its power by denying bail to many of the protesters at the January 6 riot, even for misdemeanors, by alleging they were part of a vast conspiracy. As columnist Clarice Feldman so aptly explained, Keeping in D.C. jails without bail some of the protestors who engaged in no specific violent acts at the Capitol until their cases can be heard was very obviously designed to compel them to plea bargain so they could return home to their families and jobs, and the three-judge panel wasnt buying it.

It doesnt take much of an imagination to envision a scenario where police conduct a warrantless search of someones home, find a gun, and subsequently allege that finding to be part of a conspiracy, precipitating the denial of bail especially when they can conduct an ex post facto search of someones social media for what could be deemed incendiary statements.

Statements that bring the First Amendment into play as well.

Matt Agorist, an honorably discharged veteran of the USMC and former intelligence operator directly tasked by the NSA, sees the proverbial writing on the wall. We have already seen tech giants like Facebook hand over the private messages of those who talked about the events of January 6, he writes. If [Caniglia v. Strom] is upheld, it could pave the way for cops to raid the home of those who engage in peaceful discourse based solely on the premise that violence might happen.

The 2002 movie Minority Report envisions a future where police have the legal authority to prevent crime before it happens. It was set in the year 2054, and much like George Orwells 1984, it was presented as a cautionary tale not a how-to manual.

Unsurprisingly, the Biden administration and attorneys general from nine states have sided with the police, and as Fox New host Tucker Carlson warns, The Biden administration is asking the Supreme Court to approve of this and make it a precedent. Theyre asking for permission to search any home they want, without a warrant and take what they want.

We used to call that tyranny. What an increasingly feckless Supreme Court will call it is anyones guess.

Continued here:
Arnold Ahlert: Will SCOTUS Eliminate the Fourth Amendment? The Patriot Post - Patriot Post

After a brief executive session, the appeals board said it could not make a decision on the appeals case at this time but it would schedule a new session soon to review further evidence.

The officers did not give Runser a meaningful opportunity to communicate, and their actions violated many department policies and rules of conduct, said Debra Southard, who spoke on Runsers behalf at the hearing.

What lawful reason was there to stop Mr. Runser and violate his Fourth Amendment right to detain him, to abduct him and take him to a hospital when there was no medical need for him to be there, Southard said.

Runser, speaking through an American Sign Language interpreter, said: Im outraged by this situation I was frightened and very scared throughout the whole ordeal because no one communicated with me.

The appeals board can agree or disagree with the decisions of internal police investigations into allegations of misconduct, and its determinations are submitted to all parties involved and the Dayton City Commission for review.

The boards main responsibilities are to hear appeals and review policies and procedures and make recommendations as directed by the city manager and police chief.

Jack Runser, 50, of Dayton, in the back of a Dayton police cruiser in November. CONTRIBUTED

Special reports the officers wrote about the incident say Runser was combative, looked like he could not take care of himself and his behaviors seemed consistent with methamphetamine intoxication.

Some advocacy groups say police across the country sometimes interpret the actions of people with physical and psychiatric disabilities as signs of intoxication, resistance and aggression.

Dayton police and city officials did not immediately respond to a request for comment by deadline Thursday.

On Nov. 8, a passing motorist called 911 and said that a man who may have disabilities was walking in the grassy median of South Gettysburg Avenue. The caller said he wanted someone to make sure the man was OK.

Jack Runser at Grandview Medical Hospital in handcuffs. CONTRIBUTED

Runser says that day he decided to walk from his home in southwest Dayton about 1.5 miles to the Dollar General on the 800 block of South Gettysburg Avenue to get some coffee. Some parts of South Gettysburg Avenue do not have sidewalks, including a stretch south of the Dayton Correctional Facility.

In their special reports, officers Wiesman and Victor said they got out of their vehicles in the Dollar General parking lot, stepped in front of Runser and asked if he was OK, but he tried to walk past them.

Victor wrote in his report that he feared Runser would continue to ignore the officers and flee or he was having a medical emergency severe enough that he didnt notice them.

The Dollar General on South Gettysburg Ave. CORNELIUS FROLIK / STAFF

Victor said he grabbed Runsers arm to get his attention and stop him, and claims Runser tensed and tried to pull away.

Victor said Runser ignored officers instructions and commands, his actions seemed aggressive and he was handcuffed and placed in the back of the police cruiser for everyones safety. Victor said Runsers movements resembled someone reacting to methamphetamine use.

Wiesmans special report says Runsers disheveled appearance and strong body odor suggested he could not take care of himself, and his body language and facial expressions made it look like he was high on methamphetamine.

Wiesman said Runser was combative and tried to escape Victors grasp.

But Southard said Runser had no idea the officers were trying to talk to him and he merely tried to walk around them.

Runser became upset when his arm was grabbed, and he tried to tell the officers through sign language that he is deaf and mute, but he was ignored, according to Southard.

Officers asked Runser by writing questions on a notepad if he had ID and if he could hear them, and he responded nonverbally that he didnt, she said.

The officers should have called an interpreter as required by policy, Southard said, but instead they used force to put Runser in handcuffs and then in the back of a cruiser, which caused him excruciating pain because he shakes involuntarily from cerebral palsy.

They profiled him because of his socioeconomic status, she said.

A slide submitted by advocates speaking on behalf of Jack Runser during a Citizen's Appeals Board hearing. Runser claims he was mistreated by police. An internal police investigation cleared the officers of misconduct. CONTRIBUTED

Runser was taken to Grandview Medical Center for an emergency medical admission, but hospital staff communicated via sign language. Runser told them he is deaf and mute and he was released without treatment, Southard said.

But Runser later learned his wrist was fractured , and the officers stranded Runser miles from home, Southard said.

Runsers complaint was not properly and thoroughly investigated, Southard said.

A photograph of Jack Runser's wrist injury. CONTRIBUTED

Speaking through a translator, Runser on Thursday told the Citizens Appeals Board, The whole encounter has been scarred into my mind and Ill never forget how Dayton police treated me that day.

Continued here:
Man with disabilities accuses Dayton police of misconduct - Dayton Daily News

The U.S. Supreme Court heard oral arguments this week in a case that asks whether the Fourth Amendment's usual warrant requirement should be waived when the police conduct a warrantless home search while carrying out a so-called "community caretaker" function, such as when the cops perform a "wellness check" on a potentially troubled or injured person. Justice Sonia Sotomayor, one of the Court's biggest Fourth Amendment hawks, raised a few objections to giving the cops that much leeway to enter the home without a warrant.

The case is Caniglia v. Strom. In 2015, Rhode Island police paid a "well call" on 68-year-old Edward Caniglia after his wife reported to authorities that he might be suicidal. The couple had gotten into a fight the night before and she had left to sleep elsewhere. When she couldn't reach him the next morning, she called the cops. The officers who visited the house had Caniglia taken to the hospital in an ambulance, where he was examined by a nurse and a social worker and discharged the same day. In the meantime, the police entered Caniglia's home without a warrant and seized his handguns. The case centers on Caniglia's claim that the warrantless search and seizure violated his Fourth Amendment rights.

The U.S. Court of Appeals for the 1st Circuit ruled in the favor of the officers in 2020, holding that the "community caretaking" exception to the Fourth Amendment was sufficient to cover the matter at issue. The community caretaking doctrine, the 1st Circuit maintained, "is designed to give police elbow room to take appropriate action."

Sotomayor took issue with the lower court's judgment. "I am deeply concerned about the 1st Circuit's claim that there is no requirement that officers must select the least intrusive means of fulfilling community caretaking responsibilities," she told Marc Desisto, the attorney representing the Rhode Island officers and their superiors. For example, "why couldn't they ask the wife" for permission before entering the house? Why didn't the officers speak to a social worker or a psychiatrist? "How do we limit [the police] from substituting their own" judgment in such matters? Sotomayor demanded. "In this situation, there was no immediate danger," she said, yet the police "decided on their own to go in and seize the gun."

Sotomayor returned to those concerns later during an exchange with Morgan Ratner, an assistant to the U.S. solicitor general. "I don't have a problem with them having removed this gentleman and taken him to the hospital," Sotomayor said. That's a valid seizure under Fourth Amendment case law "because they had reason to believe that he was threatening suicide." Taking someone like Caniglia for a "psychiatric examination is very much an exigent circumstance."

The problem "is the next step" the officers took, Sotomayor maintained, "which is going into the home without attempt to secure consent from the wife and seizing the gun and then keeping it indefinitely until a lawsuit is filed."

"The wife tried to get [the gun] back," Sotomayor noted. "He tried to get it back. Weeks and weeks went by. When we permit police to search and seize without some standard, we run the risk of situations like this one repeating themselves."

See the original post here:
Sonia Sotomayor Questions Warrantless Gun Seizure in Big ...

The Supreme Court has handed down a new Fourth Amendment case, Torres v. Madrid, ruling that "the application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person." I thought it might be useful to get a sense of how far the new case goes, and how Fourth Amendment "seizure" doctrine might now look.

I. Prior Definitions of Fourth Amendment Seizures

First, some context. Although the law of Fourth Amendment "searches" gets tons of attention, the law of Fourth Amendment "seizures" has traditionally been passed over because it has been pretty simple to understand. The basic idea of a Fourth Amendment seizure, I have explained, has been a government taking of control. This plays out somewhat differently for seizures of property and people because the government takes control of people and property differently.

Here's the blackletter law as I have understood it before Torres. Let's start with property. The government seizes property when it meaningfully interferes with the possessory interest in that property, a test offered in United States v. Jacobsen, 466 U.S. 109, 113 (1984). Also, the acquisition of physical control must be intentional under Brower v. City of Inyo, 489 U.S. 593 (1989).

When it comes to a person, the seizure test is phrased differently. A person is seized when a government agent, "by means of physical force or show of authority, terminates or restrains his freedom of movement through means intentionally applied." See Brendlin v. California, 551 U.S. 249, 254 (2007) (cleaned up). When a person responds to a show of authority, as opposed to physical force, the test is that a seizure occurs if "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. at 255.

At first blush the property-seizure and person-seizure tests sound different, as one is about interfering with possession and the other is about restraining freedom of movement and what a reasonable person would think. But I think they're really the same thing. The government takes control of property by taking possession of it (as having possession, in the law, is just having knowing control). The government takes control of a person by either restraining them through physical force or by making a show of force sufficient to make a reasonable person think they can't leave. Either way, it's all about control.

II. The Framework After Torres

Torres involves a seizure claim from a woman who was shot by police while driving away from them. She was injured but kept driving, escaping, and therefore she did not come under police control. She brought a civil action against the officers claiming that she was shot in violation of her Fourth Amendment rights. But was she "seized"? The Tenth Circuit said she was not, as she was never brought under police control.

Torres resolves uncertainty from dicta in a prior case, California v. Hodari D., 499 U.S. 621 (1991), about whether there was a different approach for applications of physical force to a person. In particular, Hodari D. suggested that there was a common law rule that an arrest occurredconstituting a Fourth Amendment seizurewhen a person was actually touched in an effort to detain them even if they were not actually detained. That common law rule might be the correct interpretation of the Fourth Amendment.

Torres makes that dicta a holding, concluding that this indeed the common law rule and that is also the Fourth Amendment rule. The vote was 5-3, with Chief Justice Roberts writing for the majority and Justice Gorsuch dissenting.

There's lots to say about the Torres case, but here I just want to focus on the post-Torres blackletter law. As I understand the law now, there are three or four distinct kinds of seizures, depending on how you classify them. Here I'll go with four different kinds:

The first three kinds of seizures are about taking control. The fourth kind of seizure, a seizure of a person by physical force, is about touching with an intent to take control but does not require taking control.

What does Torres say about the requirement of "physical force"? If I am reading the opinion correctly, "physical force" includes both "laying hands" and "touching [the person] with an object," covering "methods of apprehension old and new." A bullet shot from a gun counts as a touching with an object. The seizure occurs only for the time of the touching, so in the case of a shooting the seizure will last only the instant the bullet strikes. But it is still a touching using an object.

What about the "intent to restrain" requirement? According to Torres, the question is whether the objective facts show a subjective purpose to apprehend the person. That is, what happened needs to establish that the officer was trying to restrain the individual. (The Court leaves open that some other intents beyond intent to restrain may also satisfy the intent requirement, but it focuses on intent to restrain here.). If the touching is a light touching, for example, that likely won't be enough to show actual intent to restrain and the act won't be a seizure.

III. Three Hypotheticals

These distinctions make me think of some hypotheticals that test the line among these categories. There may be answers to these questions, but they struck me as interesting questions on which reasonable people might disagree. Here are three scenarios:

A) The officer is chasing after a suspect on foot who is carrying a bag in his hand. The officer reaches out to stop the suspect but can only grab the bag, which easily slips out of the suspect's fingers. The officer now has the bag, but the suspect never slows down and is not apprehended.

The seizure of the bag is clearly a Type 1 seizurethat is, a seizure of property. But was the suspect himself seized? It can't be a Type 2 or Type 3 seizure of the suspect, as he never stopped. But was this a Type 4 Torres seizure? The officer had intent to restrain the person, but he only grabbed the bag. Is grabbing the bag laying hands on the person or touching the person via an object (the bag)? Does that objectively show intent to restrain, or does grabbing the bag only objectively show intent to seize the bag?

B. An officer believes that a suspect in a car is armed and dangerous. He sees the suspect reach into his jacket and pull out something that he thinks is a gun. Believing that his life is in danger, the officer shoots the suspect in self-defense to prevent himself from being shot. The suspect is shot and wounded, but he manages to drive away. It turns out the suspect was not armed, but was just pulling out his cell phone.

Was the suspect seized? Clearly this is a Type 4 application of physical force to the body of a person. But is there "intent to restrain"? In the hypothetical, the officer was not trying to apprehend the person with the gun. He was not trying to bring the person into custody. Rather, he was trying to stop the person from shooting him. Does that count as "intent to restrain"? Perhaps it does, on the theory that the officer are trained that if they fire their weapon, they should shoot to killand that if the person had been killed, the killing would have effectively restrained the person. But perhaps it doesn't, on the theory that the officer's goal was stopping the suspect from aiming a gun and shooting him, not stopping his movement.

C. Officer tries to end a high-speed chase by running the suspect's car off the road by force. The officer pushes his car's bumpers against the suspect's bumpers, running the car off the road where it crashes into a ditch. The suspect immediately frees himself from the crashed car and continues to run, escaping on foot from the officer.

Was there a seizure, of either the driver or the car or both? I assume it was a Type 1 seizure of the suspect's car, as the officer interfered with the suspect's control of it. But was there a seizure of the person? Type 2 is clearly inapplicable. But was there a brief Type 3 seizure, on the ground that there was a temporary stop of the car when it crashed? Was there a Type 4 seizure? On the Type 4 question, did pushing his bumper into the suspect's bumper that then led to the crash amount to application of physical force to the person using an object? Or was was that not an application of physical force to the body, as it was instead an application of physical force to the car?

Interesting case.

Link:
What is a Fourth Amendment Seizure After Torres v ...

The Fourth Amendment is among the most sacred safeguards of individual liberty embedded in our Constitution.

The amendment reads:

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.

In just 54 words, the Fourth Amendment packs a lot of significance, and interpreting their meaning has kept judges and lawyers busy for centuries.

The basic premise of this amendment is to protect Americans from unreasonable searches and seizures of their property by the government. (Keep an eye on the word unreasonable, because its going to be important.)

It is for this reason that a police officer cannot stop you while youre walking down the street and arbitrarily search your purse or pockets.

These protections did not just come about spontaneously. Like all amendments included in the Bill of Rights, the Framers learned from their experience as royal subjects and added safeguards against the abuses they routinely endured by British agents.

To better understand why the ratification of the Fourth Amendment was so important to our Framers requires a deep dive into the historical context of 18th-century colonial America.

The colonists, still under the thumb of the British king, were subject to arbitrary and invasive searches under the Writs of Assistance, which allowed British troops and government officials to search homes and private property looking for goods that were imported illegally or on which a tax had not been paid. Needless to say, such abuses were a sore point for the aggrieved colonists.

A particularly notable figure of the colonial revolutionary era is James Otis, a Massachusetts lawyer and political activist who has been described as the Founding Father of the Fourth Amendment.

In a famed 1761 oration against the Writs of Assistance, Otis painted a vivid portrait of how unlimited government search powers were a threat to the liberty and tranquility of the people:

Now one of the most essential branches of English liberty is the freedom of ones house. A mans house is his castle; and while he is quiet, he is as well guarded as a prince in his castle.

This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient. This wanton exercise of this power is not a chimerical suggestion of a heated brain

In making the case against the wanton exercise of this power over the American colonists by agents of the British crown, Otis articulated the intellectual and moral principles that would later come to undergird the Fourth Amendment in the Bill of Rights. He thus laid the groundwork to ensure that such abuses of power would not be allowed to continue, should America earn its independence.

A young John Adams was in the audience when Otis gave this speech and later wrote then and there the child independence was born.

The principles passionately supported by Otis would come to serve as the foundation of individual liberty, private property protection, and privacy law.

So next time you see a television cop taking time to secure a search warrant from a judge to allow him to pursue an investigation against a criminal suspect, youre watching the Fourth Amendment in actionand you can thank James Otis for that.

Over the past century, the Fourth Amendment has grown in importance, owing to the expansion of government powers and the rapid pace of technological change. During that time, the courts have paid increasing attention to Fourth Amendment issues.

A particularly important landmark was the Supreme Courts decision in Weeks v. United States (1914), which established that evidence obtained through unconstitutional means was inadmissible in court. This is known as the exclusionary rule, which is important because it provides an incentive for law enforcement personnel and other government agents to be scrupulous in respecting Fourth Amendment protections.

Another seminal case in 20th-century Fourth Amendment jurisprudence was Katz v. United States (1967). Charles Katz was a sports gambler known for his skill at handicapping college basketball games. Unfortunately for Katz, his gifts brought him to the attention of federal investigators. Seeking to avoid law enforcement scrutiny, Katz often used a public phone booth near his Los Angeles apartment to conduct his less-than-legal business affairs. To build the case against him, the FBI tapped the phone booth, which resulted in criminal charges and a conviction against Katz.

Katz appealed his case, but the 9thCircuit upheld the search because it did not penetrate the telephone booths walls. However, the Supreme Court reversed the lower courts call, throwing out the FBIs wiretap evidence and overturning Katz conviction based on the new doctrine of a reasonable expectation of privacy.

This was a landmark moment for privacy law: by divorcing the FourthAmendment from concepts of property invasion, the Court fundamentally altered the jurisprudential landscape surrounding government searches and seizures.

While in some respects this decision expanded individual protections against government snooping, in other respects it weakened the protection against incursions on private property. Moreover, no one has ever been able to come up with a good explanation of exactly what a reasonable expectation of privacy is supposed to mean.

In reaction to the imprecision of the reasonableness standard, lawyers and scholars with an interest in property law have sought to rejuvenate Fourth Amendment jurisprudence with a renewed focus on incursions on private property rights. Along those lines, key Fourth Amendment cases from the past couple of decades include the following:

As noted above, the growth of governments enforcement powers and the proliferation of technological changes have opened up new frontiers for potential Fourth Amendment violations that challenge traditional understandings of search and seizure.

For example, PLFs has written about the questions surrounding digital privacy with regard to potentially intrusive technologies like surveillance and digital tracking, urging greater protections for individuals against potential violations of privacy.

Many digital privacy cases working their way through the courts now are incredibly important in defining what types of digital privacy the Fourth Amendment protects, Woislaw notes. The Fourth Amendment is our best line of defense against the pervasive surveillance stateso now is the time for judges to clarify with greater precision how the Constitution protects digital privacy.

Likewise, there are also issues dealing with administrative searches that permit government to search the physical sites of highly regulated industries with minimal warrant protections. These include gun shops, liquor stores, bars, industrial facilities, and the like. Its another area where courts should look to rein in potential government abuses of Fourth Amendment rights.

Such challenges only underscore the fact that protection of private property from government search is a key to securing individual liberty for all Americans.

The Fourth Amendment is much more than a matter of criminal procedureby limiting the power of government to target citizens through unreasonable searches and seizures, its one of our most important bulwarks in defense of privacy and individual liberty. It is essential, therefore, that the protections to private property granted by the Constitutions Fourth Amendment (and its close neighbor, the Fifth Amendment) be zealously guarded.

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The Fourth Amendment to the Constitution: A Primer ...