Western Rifle Shooters Association

Do not give in to Evil, but proceed ever more boldly against it

Thursday, January 29, 2009

So Much for the Judiciary & the Constitution

Spartacus passed along this recent SCOTUS case:

In Arizona v. Johnson, SCOTUS allowed cops to Terry frisk passengers in a stopped car. The opinion frosts me because SCOTUS took the cop at her word that anyone carrying a scanner is automatically suspect.

From the opinion: "[female cop] also noticed a scanner in Johnson’s jacket pocket, which “struck [her] as highly unusual and cause [for] concern,” because “most people” would not carry around a scanner that way “unless they’re going to be involved in some kind of criminal activity or [are] going to try to evade the police by> listening to the scanner.”

Balko's Agitator column develops the theme by discussing another SCOTUS case affirming and expanding the immunity from lawsuits enjoyed by prosecutors:

...This isn’t terribly surprising, but it’s too bad. All the incentives for prosecutors right now point toward winning convictions. There’s very little to hold them accountable when they go too far.

Currently, even if a prosecutor knowingly withholds exculpatory evidence in a case that results in a wrongful conviction, he can’t be sued.

One final goody from EPIC:

The Supreme Court in a 5-4 opinion, held that the police may use false information contained in a police database as the evidence for an arrest. Chief Justice Roberts held that, "when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not 'pay its way.'"

In Herring v. US, the police searched and then arrested Bennie Dean Herring based on incorrect information in a government database. He was illegally arrested and searched even though he told the officers that there was no arrest warrant, and no officer had seen or could produce a copy of the arrest warrant. After he was indicted, Herring petitioned the district court to suppress the evidence gathered incident to his unlawful arrest, arguing the exclusionary rule prevented the use of such evidence. But the district court ruled against him. Herring then appealed to the Eleventh Circuit Court of Appeals, which affirmed the district court's ruling. Herring thereafter petitioned for cert. to the US Supreme Court.

Justice Ginsburg, writing for four of the Justices in dissent, said that "negligent recordkeeping errors by law enforcement threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means."

EPIC filed a friend of the court brief urging the Justices to ensure the accuracy of police databases, on behalf of 27 legal scholars and technical experts and 13 privacy and civil liberty groups. The EPIC brief was cited by the Justices in dissent.

Justice Ginsburg highlighting EPIC's brief underscored that "electronic databases form the nervous system of contemporary criminal justice operations" and "[p]olice today [could] access databases that include not only the updated National Crime Information Center (NCIC), but also terrorist watchlists, the Federal Government's employee eligibility system, and various commercial databases." Further relying on EPIC's brief, she also warned that the "risk of error stemming from these databases is not slim" and they were "insufficiently monitored" and "often out of date."

Justice Ginsburg disagreed with the majority opinion on three major premises. She argued that restricting the remedy of suppression of evidence to deliberate or reckless errors, defendants were left with no remedy for violations of their constitutional rights. Secondly, she raised her doubts that police forces possessed sufficient incentives to maintain up-to-date records. Thirdly, Justice Ginsburg reasoned that even when deliberate or reckless conduct was afoot, the Court's
assurance will often be an empty promise - as the defendant will probably be unable to make the required showing...
To recap: a zealous Executive (police and prosecutors) Branch, a Bolshevik majority in the Legislative Branch, and a lickspittle, rubber-stamp, elitist Judiciary.

Nothing bad could come of that combination...

Alea iacta est.


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