Why "Terry" Frisk CCW Permit Holders?

[DMF]

Originally posted by The Real Hawkeye (June 13th, 2004 07:24 AM):

. . . The power to manufacture new law "out of whole cloth," however, divorced from the democratic process, is the very definition of tyranny. . .

. . . I am a believer in the notion that police work and convicting people of crimes ought to be very difficult, requiring government agents to abide by the letter of the Constitution. I am, therefore, a believer in the "fruit of the poisonous vine" doctrine. If government can benefit from violating rights, they are going to do it regardless of penalties. The evidence must be thrown out, along with all evidence that the discovery of that evidence led to. . .

(SIC) emphasis added

Here again is the flaw in your approach to these matters. The "exclusionary rule" or "fruit of the poisonous tree" doctrine, which you love violates your so called "orthodox understanding" of the Constitution. No where in the Constitution will you find the exclusionary rule, in no part of the US Code will you find it either. It was a concept completely created by the courts.

That's right, that judiciary that YOU think has no business "creating law" felt that in ADDITION to criminal and civil penalties for violating rights, they would create the exclusionary rule as an additional punishment. The concept was first introduced by the Supreme Court in 1886 with the Boyd v. US http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=116&invol=616

The court waffled back forth on the issue, until it was solidified in relation to the fourth amendment in Weeks v. US in 1914. http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=232&invol=383 Now the real irony is they made a variety of rulings over the years after Weeks (which sometimes appear contradictory), but didn't really get down to brass tacks on the issue until 1961, when they firmly applied it to the fourth and fifth amendment, and applied it the states (not just federal) in Mapp v. Ohio http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=367&invol=643

See this is where the problem with your logic lies. You love the exclusionary rule, which was created wholly out of the Supreme Court. Yet you loathe their rulings on the matters actually written in the Constitution when it comes to the reasonableness doctrine.

Also you complain of the reasonableness standard being a function of this century, and after reversals of opinion, yet again the exclusionary rule (which you call "fruit of the poisonous tree") is also a concept of this century. Hell it wasn't even clearly applied to the states until 1961.

Either the Court has the powers defined in Article III of the Constitution, or they don't, but you can't have it both ways. Since I support and defend the WHOLE Constitution, I live with their rulings whether they are from last century, or last year.

 

[The Real Hawkeye]

The exclusionary rule is merely a judicial policy for the enforcement of the Fourth Amendment's requirement that government agents not overstep their bounds with regard to search and seizure. If police may not search and seize in a particular case, but do so anyway, the only effective way for an appellate court to make it right is to eliminate the evidence wrongly obtained, as they had no right to it to start with. Developing methods for making things right when rights are violated is what judges do. This is not making new law, but rather it is a strict application of the Fourth Amendment according to both its plain meaning and the known original intent of its framers. The original intent is that government not benefit from a violation of our rights, and that's exactly what the exclusionary rule accomplishes, i.e., preventing government from benefiting from violating our rights. This is exactly what we need more of in the Federal Courts. Instead, what we get too often is a bunch of judges deciding what outcomes they think would be best for society, regardless of the plain meaning of the Constitution and regardless of the known original intent of the framers, and then disingenuously declaring that this is what the Constitution means.

 

[DMF]

Nice try Hawkeye, but you're back-pedaling.

The Courts invented it as a way to punish LE for violating the 4th Amendment. Congress felt that passing laws that created criminal penalties for violating rights, and that civil torts were enough, but the Courts invented the exclusionary rule, and it is as binding in considering evidence as the Carroll Doctrine and Terry Frisks.

The truth of the matter is you want to cherry pick court decisions, just as you like to cherry pick the Constitution. If it suits your view of the world it's great and good, if it doesn't it horrible, unjust, or not an "orthodox interpretation."

Our system isn't perfect, but it's the best thing going.

 

[The Real Hawkeye]

Nice try Hawkeye, but you're back-pedaling.

The Courts invented it as a way to punish LE for violating the 4th Amendment. Congress felt that passing laws that created criminal penalties for violating rights, and that civil torts were enough, but the Courts invented the exclusionary rule, and it is as binding in considering evidence as the Carroll Doctrine and Terry Frisks.

The truth of the matter is you want to cherry pick court decisions, just as you like to cherry pick the Constitution. If it suits your view of the world it's great and good, if it doesn't it horrible, unjust, or not an "orthodox interpretation."

Our system isn't perfect, but it's the best thing going.

DMF, your confusion in this matter, I suspect, stems from your failure to distinguish between "substantive law" and "remedial law." The Fourth Amendment is an example of substantive law, while the exclusionary rule is an example of remedial law. Judges traditionally (and this is going as far back as pre-Columbian English Common Law) have possessed a wide latitude in meeting out remedies for violations of substantive law. Let me provide you with the salient definition from Black's Law Dictionary. Here's what they have to say:

Substantive law is that part of law which creates, defines, and regulates rights and duties of parties, as opposed to "adjective, procedural, or remedial law," which prescribes methods of enforcing the rights or obtaining redress for their invasion.

So, for instance, the requirement that a LEO obtain a warrant for a search would be a matter of substantive law, while the remedy for a violation of that requirement would be a matter of remedial law. This is what judges are expected to do, i.e., determine ways of redressing violations of rights, i.e., violations of substantive law. This is in their basic job description. It is an area where judges have always been allowed creativity because, traditionally, remedial law is not enacted by legislatures. It has traditionally been left to judges to determine the best methods of remedying violations of rights, i.e., violations of substantive law.

Probably the most pedigreed remedial procedure in law is what's referred to as status quo ante. This is an injunctive power inherent in the office of judge to "make whole again" someone whose rights have been violated. The power resides in the office of judge, as it defines his essential role in the American and traditional English legal systems. The exclusionary rule is merely an outgrowth of this injunctive power. The only way to make a victim "whole again," in this case, is to exclude the evidence which would not have been obtained had the LEO not invaded the victim's rights under the Constitution.

The Carroll Doctrine and the Terry Frisk, on the other hand, are the result of a creative interpretation of substantive law, which is not a power recognized in American judges (nor, for that matter, in English Common Law). It rightly belongs to legislators. This power, however, has, in recent decades, been usurped by appeals court judges, particularly in the Federal Courts of Appeals and in the US Supreme Court, which is where we get such things as the Carroll Doctrine and the Terry Frisk, both of which are matters of judicial creativity in the area of substantive law. That, in a free society, is a no no. It's the unmistakable mark of an aristocratic tyranny of the judiciary.

 

[DMF]

Gee Hawkeye, that is VERY interesting. Now could you point to any of that in the Constitution of the United States, so that I can see how it fits with your "orthodox understanding" of the Constitution?

Also, I find your references to English Common law VERY interesting. You see the Constitution was written by people that liked some things from English law, and didn't like others. The 4th Amendment being a wonderful example of their dislike for things contained in the English system.

You can find references to English Common law, references to the intents of the framers from various sources, even references to laws and customs in other countries (sure to be controversial), in various Supreme Court rulings. My question is how do they fit with your "orthodox understanding" of the Constitution? You want to allow concepts to things that are not in Constitution, but reject laws and court rulings all done according to the process defined in the Constitution. It makes no sense.

Hawkeye, reread the Constitution. It does not contain any distinction between "remedial" or "substantive" law. The Supreme Court in Article III is given the authority rule in ALL matters of law. Nowhere is their a definition or distinction over types of law. http://caselaw.lp.findlaw.com/data/constitution/article03/

Again, you are cherry picking your sources to support your view of how you think things should be rather than looking at the Constitution, the US Code and relevant case law as a whole.

 

[The Real Hawkeye]

DMF, it looks like I will never convince you. My defense of my position, however, has not in the least been damaged by what you have just said. My defense stands, as is, pristine and unassailed. It requires no alteration or addition to defeat what you have just posted. If you will reread my previous posts, you will observe that I never said that we adopted English Common Law, but only that this aspect of the US Legal System is paralleled in ancient English Common Law. That is to say, it has an ancient pedigree in our legal tradition.

PS: I am not going to provide you with an education in law. For this, please contact an accredited law school near you and find out what's needed to apply.

 

[DMF]

Your "defense" is far from "unassailed." I suggest you look up the definition of that word, because I have thoroughly and effectively attacked your position on this matter. m-w.com definition of assail m-w.com definition of un-

Regarding your attempted witticism about my legal education, I assure you my education on these matters was at the hands of people that praticed criminal law both as prosecution and defense, including a few former judges, then they went into teaching. They are both great legal practitioners and scholars. So while your remark may seem witty, it's neither particularly relevant or witty.

 

[The Real Hawkeye]

My apologies for hurting your feelings. Defense, however, has rested. Move on.

 

[DMF]

My feelings aren't hurt, and the "defense" should rest, because you are losing the debate.

 

[tcsd1236]

If the cop *knows* the citizen has a valid CCW permit, he knows no law is being broken by the citizen being armed. So why does the citizen need to be frisked or disarmed, voluntarily or otherwise, for the duration of the encounter?

As usual, you are assuming that just because someone has a carry permit, they are automatically a good guy who is not currently involved in some criminal activity. Criminal violations by permit holders may be small in number, but they do ocur. Someone may be a permit holder who has simply never been convicted of a disqualifying crime but who engages in illicit behavior of some sort that may, this time, be found out for the first time. There are any number of reasons.

 

[The Real Hawkeye]

Your "defense" is far from "unassailed." I suggest you look up the definition of that word.

I used the word as in the phrase "unassailable argument," which, according to the American Heritage Dictionary, is defined as "Impossible to dispute or disprove."

 

[The Real Hawkeye]

DMF Said: My feelings aren't hurt, and the "defense" should rest, because you are losing the debate.

I wasn't aware that you occupied both the position of prosecutor and judge.

 

[spartacus2002]

Hawkeye has a valid point.

The English Common-Law system was the basis for American Law. It wasn't all flushed away the moment the Constitution and/or BOR were ratified. Rather, they are the lenses thru which the pre-existing legal system are focused.

The 4th Amendment was a reflection of the right of Englishmen to be secure in their homes, and a reaction against the use of the general warrants in colonial America. The 4th Am was not a new legal theory; it reaffirmed what was supposed to exist in response to abuse.

The Supreme Court in Article III is given the authority rule in ALL matters of law

Negative; that was self-granted in Marbury v. Madison.

tcsd1236: As usual, you are assuming that just because someone has a carry permit, they are automatically a good guy who is not currently involved in some criminal activity. Criminal violations by permit holders may be small in number, but they do ocur. Someone may be a permit holder who has simply never been convicted of a disqualifying crime but who engages in illicit behavior of some sort that may, this time, be found out for the first time. There are any number of reasons.

Oh, for chrissakes. Very well: every car owner shall be stopped and breathalyzed while driving with no probable cause or reasonable suspicion or articulable suspicion, because we all know that SOME small amount of car owners drink and drive and cause death/greivous bodily harm.

Hello, ring ring: If you're talking about carry permit holders, who have gone thru extra legal hoops in order to legally carry, then you are talking about people who have demonstrated their inordinate sense of responsibility and law-abiding character. Why mess with them? Especially on the flimsy pretext of "WELL, 0.01% might be a problem..."

Quit looking at all your fellow citizens as criminals-in-waiting or get a new line of work.

 

[The Real Hawkeye]

The English Common-Law system was the basis for American Law. It wasn't all flushed away the moment the Constitution and/or BOR were ratified. Rather, they are the lenses thru which the pre-existing legal system are focused.

Well said, Spartacus. The inherited legal system and tradition was largely retained, and provided the context for the Constitution rather than having been replaced by the Constitution. I particularly like your analogy to lenses and focus.

 

[CrudeGT]

Wait, we have a member names "PrudentGT"? I never knew, but now it makes me laugh, maybe he's my arch nemisis...


Anywho, back to the question at hand, and not the debate about what the founding fathers meant when writing on paper, Here in Utah, I've been stopped a few times since I've had my CCW. I've never had a cop take it from me, and I've never been frisked when I handed the officer my permit. most of the time they don't even ask where it is. I think that if an officer DID ask me to hand over my concealed carry, I would unload it before handing it to him. I carry an XD40, no external saftey, pull the trigger, gun goes boom. If he's not trained on it, i don't want that cop shooting himself with my gun and then the state coming after me.

 

[The Real Hawkeye]

Only time anything like that happened to me was in Vermont, but the cop didn't want the gun, only that I unload it before he began to talk to me. He asked me if I was armed with a handgun, and I said yes. Then he asked me if I wouldn't mind unloading it, so I did. Seems stupid to me, though, as a stranger drawing a gun out should make him queasier than just asking me to keep it holstered. He also could have murdered me, and had the defense that I drew my weapon first. Not a good situation no matter how you look at it.

 

[The Real Hawkeye]

Only time anything like that happened to me was in Vermont, but the cop didn't want the gun, only that I unload it before he began to talk to me. He asked me if I was armed with a handgun, and I said yes. Then he asked me if I wouldn't mind unloading it, so I did. Seems stupid to me, though, as a stranger drawing a gun out should make him queasier than just asking me to keep it holstered. He also could have murdered me, and had the defense that I drew my weapon first. Not a good situation no matter how you look at it.

 

[CrudeGT]

That's a good point. I guess if the officer is crooked enough anything is possible. If it was just a matter of the officer asking me to unload it, and reholster it, I'd probably keep one in the chamber, just in case.

 

[DMF]

The Supreme Court in Article III is given the authority rule in ALL matters of law

Negative; that was self-granted in Marbury v. Madison.

Please actually read the documents in question before you make claims that are completely incorrect.

For you edification a link to Article III. http://caselaw.lp.findlaw.com/data/constitution/article03/

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States . . ."

So that settles the issue of what the Constitution says about the power of the Judicial Branch.

What Marbury v. Madison said was that if there was a conflict in a case between a law passed by Congress and the Constitution, that the court must follow the Constitution in it's ruling rather than the law, because the Government must always follow the Constitution, even the legislature when creating laws.

From Marbury v. Madison Justice Marshall wrote: ( http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=5&invol=137 )
"'So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.''

 

[DMF]

Well said, Spartacus. The inherited legal system and tradition was largely retained, and provided the context for the Constitution rather than having been replaced by the Constitution. I particularly like your analogy to lenses and focus.

Oh so you have replaced your "orthodox understanding" of the Constitution, and plain reading of the text with lens and focus of other concepts, and ideas, not plainly written into the text?

The inherited system was largely retained? BS, they used traditionals systems when forming the Constitution, but they included what they wanted and could get ratified. Everything else is open to interpretation, but you have been clear that you object to any interpretation by the courts, except of course when it fits your view of how things should be.

Since I hate to repeat myself, all of which I clearly addressed in this post:
http://www.thehighroad.org/showthread.php?s=&postid=1058569#post1058569
AND
http://www.thehighroad.org/showthread.php?s=&postid=1059819#post1059819

 

[spartacus2002]

Gee, guess my law degree is worthless. OK, DMF, I'll go ask my Constitutional Law professor for my tuition money back.

 

[DMF]

Good luck getting that money back, it appears you deserve it.

So what was incorrect about what I posted in response to you?

Hint: Since they were direct quotes from the documents being debated - the answer is NOTHING was wrong with what I posted. I guess my Con Law instruction was a little better than yours.

 

[twency]

I guess my Con Law instruction was a little better than yours.

Wow. A urinating contest between people who claim to have some degree or another of legal education.

I guess I'll join in.

As a son-of-a-lawyer (no, that's not a swear-word, although I know it seems like it should be), the brother of a lawyer, a frequent participant in discussions on the law, including Strict Constructionism, and as a law school drop-out (hated civil procedure with an unbearable passion):

Hawkeye's statements sure make sense to me.

-twency
_________
"The parent who complained, Karen Young, doesn't want fish-shaped toy guns in her house because she accidentally shot an ex-boyfriend one time when the gun she was beating him with went off."

 

[The Real Hawkeye]

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States . . ."

So that settles the issue of what the Constitution says about the power of the Judicial Branch.

DMF, that doesn't prove YOUR point, which was that the Constitution granted the sole power of interpreting the Constitution to the Federal Courts in general, and the Supreme Court in particular. The sentence you quote refers to original jurisdiction, but then I guess you don't know the difference between original jurisdiction and appellate jurisdiction, because these terms are not defined as such in the text of the Constitution. As for appellate jurisdiction, the extent of it belonging to the Federal Courts is entirely at the pleasure of Congress. The Congress can even declare all Federal Courts (except the Supreme Court) dissolved, and so limit the Supreme Court as to deny ALL appellate jurisdiction. (See Art III, sections 1 and 2)

 

[dev_null]

Is this pissing contest going anywhere? Seems to me it's outlived its shelf-life.

Is there a moderator in the house?

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