Regarding the 4th Amendment
From Truth About Guns blog: https://www.thetruthaboutguns.com/how-the-community-caretaking-exception-undermines-second-and-fourth-amendment-rights/
Read the excerpt below first, as it addresses the erosion of the Fourth Amendment, which was specifically included by the authors of the US Constitution as a response to the constant harassment of the people of the Colonies by George III’s troops, prior to the War of Independence.
From the article: By the way, where is the “community caretaking exception” in the Fourth Amendment? Look for yourself, as the Fourth 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.
There is no “community caretaking exception” to be found in the Fourth Amendment. It doesn’t say that the right does not apply if the police are there to help you, rather than to investigate you. But “the right of the people to be secure in their … houses” is there — as clear as can be. – article
Got that down pat? Okay, now read the entire article at the link above.
Meantime, the attempts to divest us of our civil rights, as a people, are coming under closer and closer scrutiny and are no longer ignored by us and those like us.
It is not only the 2nd Amendment that is under attack. The erosion of the 4th Amendment has been going on for some time, and there is always an excuse for bad behavior by law enforcement. There’s a long history there, which I do not need to go into right now. If these federal laws, which were well thought out by the Founders, are revoked for no reason other than “because we can!”, it’s because some people let them do it with no thought to the consequences.
Remember, no one is forced to own a gun in this country, or a weapon of any other kind, for that matter. It is a matter of choice and the freedom to make a choice.
Category: 2020 Election, Gun Grabbing Fascists, Guns
The Fourth Amendment has BEEN gone. The rest of the US Constitution has become replacement toilet tissue for Kongressional Rest Rooms.
“the right of the people to be secure in their … houses”
The third amendment did not go far enough, thus the fourth.
Seems to me there is a well thought out order to our rights.
Screw with one, you invoke the others. I see a clear reason
why the “first” is under attack lately…if it fails, so do the rest.
There is no “community caretaking exception” to be found in the Fourth Amendment. Except for that pesky word “unreasonable” in the Amendment, this statement would be right as the exception was found to be part of reasonable actions by the police. Here are the facts of this case: 1) Edward A. Caniglia and his wife of 27 years were having marital issues. Fighting was constant. 2) One night, during a fight, Edward went and got a handgun which Kim told the police was loaded and slid it across the table to her saying “go ahead and shoot me. End it.” 2a) Kim later said in a deposition that the gun was not loaded. 3) Edward left the home to cool off. While out, Kim hid the handgun’s magazine fearing for her safety and that of Edward. 4) Edward returned. More fighting ensued. Kim left the home and went to a motel. 5) Kim called Edward and got no answer. Fearing for what he might have done and her own safety, she called the police to go with her to the home to check on Edward. 6) When the officers arrived,, Edward was on the back porch in a chair with the handgun in his hand. Three officers said that Edward was calm. Two said he was angry and combative – especially when asked about his mental state. 7) Edward agreed to go to a hospital to be evaluated for his mental condition. The police said they would not confiscate his handgun. (This was not true.) 8) At the hospital, Edward was not found to be suicidal and released after 12 hours. (He was not admitted to the hospital.) 9) While at the hospital, the police confiscated his handgun, the magazine, and a second handgun in the house the wife told them about. The police entered the home with the consent of the wife and did not use the “community caretaking exception” as a premise for entrance into the home. The search was neat, orderly, and once the second gun was found, the police left the home. Edward sued under a… Read more »
The “community caretaking exception” has a history of police getting the wrong address and not listening to the occupant(s).
This is one very good example right here:
https://www.cbsnews.com/news/chicago-police-raid-wrong-house-handcuff-naked/
Unfortunately, Lightfoot (da Maire) refused to let the video be released to the public for two years and now the city of Chicago is rightfully being sued. It is NOT the only time this kind of thing has happened.
The incident of which you speak was a planned raid based on a tip of illegal activity. It was not a result of the “community caretaking exception.”
As I said, the exception does not allow the police to initiate a search absent of other factors within the law.
” given what they knew and observed.”
What did they know? They knew only what the wife told them. Not exactly an objective source, particularly since there was a history of marital strife.
What did they observe? Depends on who you ask. Three police officers said he was calm, two disagreed.
It would be at least as reasonable to conclude that the man was not a threat to himself or others. Why not just toss a coin?
” The police said they would not confiscate his handgun. (This was not true.)”
Evidently it is an accepted practice for police officers to lie to citizens. Evidently they are not aware of the consequences of that. No wonder folks don’t trust the police. An example of prioritizing short-term “success” over long-term damage.
What did they know?
They knew what the wife told them. In addition, Edward told the police that he had told the wife to shoot him, but characterized the statement as hyperbole.
What did they observe?
The officers walked in and out of the interview. It is clear that there were times when he was excited and when he was calm. The fact that they observed him being more concerned with his handgun over the safety of himself and others is another indication that he was not rational and the subsequent, focused search was reasonable.
It would be at least as reasonable to conclude that the man was not a threat to himself or others.
Once again, the man admitted to telling the wife to shoot him. Given the total circumstances, it was not an unreasonable search.
Evidently it is an accepted practice for police officers to lie to citizens.
Police can lie to you. You weren’t aware of that?
You really think that if an undercover cop is asked “are you a cop,” the cop has to answer “yes” or risk getting the entire case thrown out? How many cases on this blog have highlighted the FBI / ATF / LEA’s lying to people and saying they can get munitions or are a killer for hire?
An example of prioritizing short-term “success” over long-term damage.
The police were met with a difficult choice. They could just walk away and hope the man didn’t kill himself or his wife and even injure others, or they could remove him to be evaluated (which they did) and remove the means for him to harm himself and others.
In this case, the short term “success” meant the man and his wife were around in the long term. That’s a good outcome.
And I am guessing you think the word “reasonable” would hold its generally accepted meaning. Unfortunately, today as used by the left it means “whatever convoluted unrelated meaning or loophole we can designate”. Like saying killing a baby is part of a tight of privacy, or claiming that Congress can stick their oar into any water under the guise of interstate commerce.
I am not thinking that “reasonable” in the law means anything other than what the courts have held it to hold, ie what a normal person would do in the same circumstance. In addition, in the case of Mora v. City of Gaithersburg, the court opined: Indeed, had they not taken the weapons, and had Mora used those weapons to cause harm, the officers would have been subject to endless second-guessing and doubtless litigation as well, just as the officers and teachers at Columbine were challenged for red flags they had over-looked before that tragedy. See Castaldo v. Stone, 192 F.Supp.2d 1124 (D.Colo. 2001). …. Likewise, the Fourth Amendment favors a warrant based on probable cause, but “because the ultimate touchstone of the Fourth Amendment is `reasonableness,’ the warrant requirement is subject to certain exceptions,” Brigham City v. Stuart, 547 U.S. 398, 126 S.Ct. 1943, 1947, 164 L.Ed.2d 650 (2006)”as when exigent circumstances justify the warrantless search of a home, Mincey v. Arizona, 437 U.S. 385, 393-94, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), or when the need for on-the-spot response justifies a search and seizure based on reasonable suspicion, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The lesson of these cases is clear: We are to approach the Fourth Amendment and the Due Process Clause with at least some measure of pragmatism. If there is a grave public need for the police to take preventive action, the Constitution may impose limits, but it will not bar the way. Often times the law paints in broad strokes, but in this case, the question is “would a reasonable person slide a “loaded” gun across a table, tell his wife of 27 years to “shoot him,” not answer the phone and have his wife so afraid for his and her safety that she called the police and hid the magazine for the gun? I don’t think that is what a reasonable person would do. Which leaves the question “what is a reasonable response from the police?” I would argue that the “reasonable” response would be just… Read more »
“Indeed, had they not taken the weapons, and had Mora used those weapons to cause harm, the officers would have been subject to endless second-guessing and doubtless litigation as well”
Are they not now being subjected to all that? And fear of being criticized is not sufficient reason for police to do whatever they want. Between that and “I was in fear for my life” they can claim justification for anything. And sometimes do.
” a “loaded” gun…”
I take it the quotes mean it wasn’t loaded.
“… not answer the phone”
Uh oh. I often don’t answer the phone. Is it reasonable to commit me?
“…have his wife so afraid for his and her safety t…”
So it’s his responsibility that his wife gets hysterical and overreacts?
Are those police so inexperienced with life in general or so stupid that they have not learned that people say things they don’t mean when they are angry or upset? Or that sometimes they will get calls from hysterical dishonest people whose words cannot be relied on?
Are they not now being subjected to all that? No, because Mora is not dead. In this case, Caniglia is not dead either. I take it the quotes mean it wasn’t loaded. Try understanding what happened. The wife told the police that he had slid a gun toward her that she thought was loaded. Furthermore, his statement of “go ahead and shoot me!” with the gun only makes sense if the gun is loaded. That is the information the police initially had. Uh oh. I often don’t answer the phone. Is it reasonable to commit me? It may be given the totality of the situation. You want to separate not being able to contact the man with his desire to be shot. Reasonable people would want to at least check on him to make sure he was okay. Gee, sort of like life. Getting excited, even irritated or angry, under interrogation and accusations doesn’t seem out of line to me. You might be right….except for the gun part and wanting to be shot. That is not the act of a person under control. Is your first reaction when in an argument with your spouse to pull out a gun? With an unloaded gun. With a gun that was thought to be loaded. You can’t have it both ways. If the man slid a gun across the table and said “shoot me,” do you really think that demonstrates he was in a frame of mind where he may not hurt himself or others? The burden of proof is on the police, not the citizen. It doesn’t look to me that the preponderance of evidence, much less “beyond a reasonable doubt” favors the confiscation of the man’s pistols, much less his commitment. The evidence for confiscation is overwhelming. It really would help if you actually read the case files as you would see that he was not committed. And I repeat, why should I or anyone trust someone who admits lying is part of their SOP? So you would rather undercover cops be killed? How nice of you. Cops have lied to… Read more »
Except they stole his property and refuse to this day to return it. Dependent on the value of the firearms in question, that is a felony. Plus the refusal to return them once there is a determination that he is not a danger to anyone or anything, so there is another crime.
This case – this actual case decided by the First Circuit and appealed to the Supreme Court – is not about the return of the weapons.
That is a separate action and one which Caniglia should win (along with costs) if he chooses to file. I can’t find anything that says he has filed that case yet.
Courts can only rule on what is in front of them.
“The fact that they observed him being more concerned with his handgun over the safety of himself and others is another indication that he was not rational”
Perhaps you are right. Perhaps he did need to fear for his own safety while being in the custody of armed police, whereas his pistol was perfectly safe in the custody of those officers; after all, they *promised* him they would not take his pistol, so why should he be concerned?
“. It is clear that there were times when he was excited and when he was calm. ”
Gee, sort of like life. Getting excited, even irritated or angry, under interrogation and accusations doesn’t seem out of line to me.
“Once again, the man admitted to telling the wife to shoot him”
With an unloaded gun.
The burden of proof is on the police, not the citizen. It doesn’t look to me that the preponderance of evidence, much less “beyond a reasonable doubt” favors the confiscation of the man’s pistols, much less his commitment.
And I repeat, why should I or anyone trust someone who admits lying is part of their SOP? And yet they complain about the public having a bad attitude towards them. For example, how do you counter the BLM’s portrayal of police as untrustworthy murderers when they admit to being untrustworthy and the internet has a disturbing number of videos of police killing and mistreating civilians without good reason? “They are exaggerating” is not much of a defense.
What can we do to make things better?
Fire the politicians. That’s the first step.
“Except for that pesky word “unreasonable” in the Amendment, this statement would be right as the exception was found to be part of reasonable actions by the police. ”
Kind if of the way the “without just compensation” let us down on the 5th.
This is not a 5th Amendment case as the articles taken were not taken for “public use.”
Kelo is a horrible decision. There is little doubt about that in my opinion. It is good to see that individual states addressed that issue.
The Supreme Court should also look to address asset forfeiture in a more forceful way, as well as addressing qualified immunity for government officials and actors.
But we aren’t talking about that here.
“But we aren’t talking about that here.”
No, but we are talking about “reasonable” decisions made by the police, and those other examples certainly have a bearing on that.
No, but we are talking about “reasonable” decisions made by the police, and those other examples certainly have a bearing on that.
Except they don’t.
Not even close.