Asymmetrical Information

It's people like Lithwick who give me hope for the Left. They're such a mess these days.

Standard conservative Kuhscheiss.

By saying

"Well, the boys on the 9th Circuit seem to be of the opinion that one should give the drug dealer in question..."

it is clear that she has pre-judged the situation. I would expect that of Ashcroft. I guess we can expect that of Slate as well.

Standard conservative Kuhscheiss.

By saying

"Well, the boys on the 9th Circuit seem to be of the opinion that one should give the drug dealer in question..."

it is clear that she has pre-judged the situation. I would expect that of Ashcroft. I guess we can expect that of Slate as well.

Raj, the police had probable cause, and found the gent in question with a large stash of crack. It's hardly an unreasonable assumption, particularly as the man has been convicted already -- that's why its at the USSC.

Isn't the War on Drugs the real problem?

Dahlia Lithwick, by the way, is absolutely EXCELLENT. Who could think that the dry writings of the law can perk up to attention when she spotlights this stuff for an audience of regular people?

Another point on the War on Drugs business, is the 'lttle something' of Wesley Clark, in 1993, actually allowing military tanks to be used on the crushing annilhilation of the Koresh Compound, where something called "Comitatus" something-or-other, disallows military use of such hardware against American citizens, got obviated? So that Clark (as commander of Fort Hood) just didn't 'have to' hang up the phone on Ann Richards?

Why did we allow our War on Drugs to debase our Constitutional protections? Go back, and look at the list. Guns? Allowable under the 2nd Ammendment. Scales? What kitchen can't use one? And, the 11 ounces of crack? What business is it of yours?

Wasn't America's openness once referred to as neighbors walking a mile to borrow a 'cup of sugar?' I really think the whole logic behind the Drug Laws STINK TO HIGH HEAVENS! Maybe, the only sanity in the whole package belongs to the 9th?

Carol,

You are among friends on the question of the war on drugs. I don't think it's a great idea, and neither does the proprieter of this blog.

But this isn't about the war on drugs. It's about search and seizure. When the cops go to make a seizure of something unabiguously bad and easily destroyable--say, computer files with child pornograpy--they will need to follow the rule set down by this case. So it pays to attend to the archane details of procedure rather than simply say the cops shouldn't have been going after a drug dealer.

And while I am as stauch and serious a defender of the 2nd Amendment as any, I don't have a big problem with seizing the guns of a drug dealer. Better he be deprived of them than I have to defend myself from his depredations.

And Raj, there is no question of "pre-judging" the situation. The guy was either a drug dealer or a very convincing drug-dealer-impersonator, and Occam's razor would suggest the former. In any case, his status is not relevant to the discussion at hand, which is about the proper rules for police searches when they have a warrant, not the burden of proof. Your dismissal of the entire article based on one obviously true sentence (and, for that matter, the description of Lithwick as "conservitive" *snort**chortle*), is as fine an example of unjustifed pre-judging as anyone could hope to find.

Raj,

When someone has been convicted of dealing in drugs, it is not pre-judging to call them a drug dealer. A real life judge (and/or jury) has decided that he is a drug dealer, after examining the evidence and hearing his defence.

The poisoned fruit rule, that evidence from an illegal search can not be admitted, does not change the guilt of the party. Advocates of this rule readily admit that it will mean letting guilty people go. The justification is that only such an extreme measure is sufficient to deter the police from using illegal searches.

Lithwick did nothing that any legal reporter, or any political or jurisprudential persuasion, would not have done. Be more careful before you accuse.

As amusing as Lithwick's description is, and no, I don't think the plaintiff has a case, there are two interesting issues:

1) How long is "long enough" for forced entry?
2) If we're supposed to not "read in" stuff to the contents of laws, how come this.....

"The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant."

....only says "refused admittance?" It's rather odd that they left out "not at home" or "incapacitated."

Folks, I can be serious.

Because when the police knocks you don't need to give people with guns to get set up behind the door. Then, instead of 'opening the door' you get a big explosion.

Well, if you want to run out a window, you definitely want to try the military idea that first you 'do a diversion.'

Then, on another level, as police do their jobs, they need to get in just in case somebody inside is 'incapacitated.' (As mentioned above.) OR innocent people, held as hostages, are being threatened by a maniac.

Once the cops are there, and they have a signed warrant, the 9th's decision will be turned by the Supreme Court. That's the system. If lower courts didn't put the bumps into the road (over a very large nation), then you wouldn't need a Supreme Court.

I still think the War on Drugs is the worst idea possible. And, yes, the courts are NOT dealing fairly with what is known about human nature. Lots of the stuff that put this war in place were lies.

And, how it will ever get undone, I do not know.

On the other topic, how Wesley Clark, as commander of Fort Hood answered Ann Richard's plea! (Not Janet Reno. Janet was playing with Richards. These women did this together.) And the Comitatus "thing" didn't protect 70 people who were killed. Broad daylight. Forgotten? Nah.

That's something the law needs to recognize. Stuff that is illegal on its face, whether it sails by the Supremes or not, is ultimately dealt with by an outraged public.

Hard to get people sympathetic with the 'few' druggies? Well, that's one reason people are afraid. On the other hand, we pay more for drugs in America. And, that does affect a lot of people.

Who says changes aren't possible?

they really do need to clean up the wording (change it to "is not granted entry in a reasonable time")

but the USSC is not going to change the rules on this (as it would empty the prisons for a really minor flaw)

strict constructionists (as i am one) can't abide by this interpretation, but the interpretation is so long standing, so integral to the system that the harm in maintaining strict construal of the statue vastly outweighs the harm that comes from not reading the statue literally, despite the fact that i view the second harm to be extremely large...

and lithwick ain't no conservative... moderate communist is a more apt description

Since I'm not a lawyer, there are questions that pop up into my mind.

1) The 9th WANTS to do this stuff! It's like a game, more than the law. It's called a 'disruption.' And, it invites something the law needs. Sort'a like putting light signals in traffic zones where there are lots of accidents; at some point doesn't the following come into play?

2) WHOSE AUTHORITY SITS ON A WARRANT? The judges? Or the cops? In other words, since I'm presupposing a judge can say 'no', that the judge, is in fact, the issuer of the warrent. Let's say as he signs his name he says "DO IT NOW." Would that shift the time clock on execution?

3) What police authority would willy-nilly approach a door, without taking preliminary actions? Is it safe for the officer? Does he need backup? Is he gonna be hurt by a trap? Will the police look to 'seal exits?' In other words, what military person in charge of battle plans doesn't FIRST execute plans?

4) So that, here, you have a judge, executing a warrant (which I'm thinking the Constitutional basis is that your rights to privacy CAN, IN FACT, be invaded.) Cops can't do this. Neighbors can't do this. Even guys in army uniforms can't do this. It starts with a judge, who agrees to sign a piece of paper.

5) Once this paper is in the hands of police authorities, as I've asked above, has the clock started running? Can the judge hand this off and then have the cops assume everyone can take a two week vacation? Can the warrant end up in somebody's pocket, and then end up in the cleaning store, because the cop forgot to remove the warrant in a timely manner?

6) In this scenario, is the judge just chopped liver?

I'm not surprised that the 9th does this stuff. It creates a strong power base. Just as Madison V. Marbury (Thanks to Marshall's insight), created a power base for the Supremes. Not a power vacuum.

Me thinks what's missing on this chess board is the play that's called for from the opponent's side. Why does the 9th go unanswered? Or is it just begging to get itself split? Will someday in the future come when this next to last station on the way of appealed decisions get weakened (0r strengthed), by dividing like an ameba?

Will the number #13 be a factor? Will no court in America ever want to be designated #13? Ya know, I don't know how all you lawyers get through law schools without strangling a few of your professors.

And, finally, the limitation on the number of Appeals "Circuits" has something to do with the number of Supremes on the main bench?

In other words, each one of our lovely Supremes is responsible for a circuit?

And, the dance is always paired? Hence, the security associated with the 9th's knowing they can't be split, without 'packing the court?' Geez. I hate it when after I ask a question, it dawns on me common sense will never provide a solution.

Carol,

I can't answer all of your questions, because I can't understand all of them. But:

There are 11 numbered circuits, each responsible for a distinct chunk of real estate. In addition, there is the Federal Circuit, which hears appeals from the entire country on certain subjects (the big one being IP cases), and the D.C. Circuit, which hears a lot of administrative law cases and other things involving the US government. So no, each justice is not "responsible" for a particular circuit, and the number of justices is not in any way tied to the number of cirucits.

The "time clock on execution" here is not the time from when the judge signs the warrant, or the time from which the police establish a perimeter, or the time from when they load up and leave the station. The time at issue is the time between 1) knocking and announcing their presence and authority and 2) smashing the door. The issue is one of both evidence destruction and police protection.

I don't have a good answer to the "reasonable time" question, but generally I suspect that it doesn't matter one way or another. The police can always pay to repair a damaged door if they break the wrong one, and if they find the evidence they're looking for, who cares if it was 5 or 50 seconds? Can we really contend that the extra 45 seconds protect some essential liberty interest or the privacy of law-abiding citizens? We aren't talking warrantless searches, after all.

And Jason, if you somehow imagine that Congress normally gets the drafing problem right, you need to spend some time at the local law library. I've been in law school 2 months and I can think of 10 examples of really badly written statutes, and the creative contortions which courts have to go through to get around them. I'd love to be strict constructionist, but legislatures are so incompetent.

(Example for the interested: 28 U.S.C 1605 has a note to it which was a direct response to an early phase of Flatow v. Iran. The court said that there was no "cause of action" in U.S. law, and that therefore Flatow couldn't sue. Congress decided to grant a cause of action explicitly--but they did it so ineptly that in Roeder v Iran, the court was able to rule that Congress had NOT granted a cause of action. Oops.)

Rob Lyman, thanks. I'm sorry some parts of my question confused you, but I really believed that the Supremes somehow divided the country between them, so that when they got Certs (right word?) requesting that they hear a case, it wouldn't be something that flew around the offices until someone picked it out; like a take out menu for the day.

But from your point it seems much more organized than that. I didn't know, for instance, that there was a 10th circuit. Let alone an 11th. But it does make sense for companies that work nationally and have issues nationally and internationally not to go have to worry about suits going in search of a judge that could be bought. Or however it gets phrased. Shopped?

As to the time element on how long before the knock to the process of entering anyway, I'd think that its best to leave this to the discretion of the cops. Since it's their lives on the line if something goes wrong.

And, yes, time is of the essence, if say the person inside the home was gasping for breath. Or fell down and couldn't get up. Fast reaction times work not just for the law enforcement agencies, but at hospitals, too. And, accident scenes. Speed matters.

It's unfortunate that we have our drug laws. As, yes, when laws are bad it corrupts the cops. Not just to be on the take, but to use force where it might be lots better to use discretion. And, to have people treated medically.

We have an underground economy that will only grow worse in the future. Not just because people can be recruited to sell drugs; but that the profits are greater than any other kinds of work some people can do.

And, meanwhile, while all the money is changing hands, taxes don't get paid. (It's the same with prostitution. It's the same with gambling, except that we're getting a lot more realistic about these things in places like Vegas, for instance.)

Did you know Vegas blossomed only after Castro tossed Americans (including the Mafia), out of Havana.

As a matter of fact, from what I've read we now have national parks going to seed because drug lords have found ways to cultivate their crops. And, they're using armed military might to keep the average hiker away.

Our 'drug wars' are not only unwinnable, it seems like we keep upping the ante. We get more illegals. We get more violent crime. And, we get stopping points. Where agencies don't work together. And, then, when some pigeon is finally caught at the end of the trail ... where he can flush his booty down the toilet ... you don't even get traceable evidence to find the big guys.

It's been a long, long time since authority got respected in this country. And, that's another piece of the puzzle. The judges can write their warrants. And, the police can deliver this stuff ... And, courts waste their time deliberating drivel.

IF a crime is being committed how can any Appeal Court justify handicapping the police? What happens when you extend this reasoning to other things?

What happens if the judge, woken to sign a warrant, really wants it executed quickly? Are we going to have dueling pens?

Whose signature is more valid? The one on the warrant (which leads to the execution of legalized breaking and entering)? Or the Monday morning quaterback judges isolated from real events, who second-guess everything?

Did the 9th execute a 'cute' power play? Was that it? Isn't that how the legal profession wakes up to discover itself in bed with prostitutes?

When did decent people lose respect for the law?

You're only in law school two months. (And, yes, you sound VERY, VERY BRIGHT!), but haven't you seen how outsiders react when you tell them what you're studying?

Rob Lyman, thanks. I'm sorry some parts of my question confused you, but I really believed that the Supremes somehow divided the country between them, so that when they got Certs (right word?) requesting that they hear a case, it wouldn't be something that flew around the offices until someone picked it out; like a take out menu for the day.

But from your point it seems much more organized than that. I didn't know, for instance, that there was a 10th circuit. Let alone an 11th. But it does make sense for companies that work nationally and have issues nationally and internationally not to go have to worry about suits going in search of a judge that could be bought. Or however it gets phrased. Shopped?

As to the time element on how long before the knock to the process of entering anyway, I'd think that its best to leave this to the discretion of the cops. Since it's their lives on the line if something goes wrong.

And, yes, time is of the essence, if say the person inside the home was gasping for breath. Or fell down and couldn't get up. Fast reaction times work not just for the law enforcement agencies, but at hospitals, too. And, accident scenes. Speed matters.

It's unfortunate that we have our drug laws. As, yes, when laws are bad it corrupts the cops. Not just to be on the take, but to use force where it might be lots better to use discretion. And, to have people treated medically.

We have an underground economy that will only grow worse in the future. Not just because people can be recruited to sell drugs; but that the profits are greater than any other kinds of work some people can do.

And, meanwhile, while all the money is changing hands, taxes don't get paid. (It's the same with prostitution. It's the same with gambling, except that we're getting a lot more realistic about these things in places like Vegas, for instance.)

Did you know Vegas blossomed only after Castro tossed Americans (including the Mafia), out of Havana.

As a matter of fact, from what I've read we now have national parks going to seed because drug lords have found ways to cultivate their crops. And, they're using armed military might to keep the average hiker away.

Our 'drug wars' are not only unwinnable, it seems like we keep upping the ante. We get more illegals. We get more violent crime. And, we get stopping points. Where agencies don't work together. And, then, when some pigeon is finally caught at the end of the trail ... where he can flush his booty down the toilet ... you don't even get traceable evidence to find the big guys.

It's been a long, long time since authority got respected in this country. And, that's another piece of the puzzle. The judges can write their warrants. And, the police can deliver this stuff ... And, courts waste their time deliberating drivel.

IF a crime is being committed how can any Appeal Court justify handicapping the police? What happens when you extend this reasoning to other things?

What happens if the judge, woken to sign a warrant, really wants it executed quickly? Are we going to have dueling pens?

Whose signature is more valid? The one on the warrant (which leads to the execution of legalized breaking and entering)? Or the Monday morning quaterback judges isolated from real events, who second-guess everything?

Did the 9th execute a 'cute' power play? Was that it? Isn't that how the legal profession wakes up to discover itself in bed with prostitutes?

When did decent people lose respect for the law?

You're only in law school two months. (And, yes, you sound VERY, VERY BRIGHT!), but haven't you seen how outsiders react when you tell them what you're studying?

Raj seems to share a common delusion of certain members of the left that if a dim-witted judge tosses out a conviction because he or she thinks it would be really neat to be identified with yet another stupid extension of the exclusionary rule, the drugs weren't really there and the defendant wasn't really selling them. Judges can do a lot when they abuse their authority and pervert the letter and intent of the Constitution, but they can't change objective reality--the drugs were there, and the guy was selling them.

The current size of the Ninth Circuit is not unprecedented. I clerked for a judge on the "old Fifth Circuit" in 1980-1981, during its last year before it split into the current Fifth (Texas, Louisiana, and Mississippi) and Eleventh (Florida, Georgia, and Alabama) Circuits. We had 25 judges out of an authorized maximum of 26 -- roughly the same size the Ninth Circuit is now -- with a corresponding caseload to keep those judges busy, meaning a corresponding opportunity for blunder/review/reversal. And there was nothing at all like the current problem with the Ninth Circuit.

Yes, they really are that liberal.

That panel needs another circuit-breaker.

-Square D marketing

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