Friday, April 30, 2010

Halfway Houses on the Road to Probable Cause and other Excuses to Constitutional Limitations on Government



The Arizona legislature of late has managed to conform to that most time honored role of state legislatures: repeating, affirming, and even expanding on the mistakes of courts and legislatures past.  Its recent use of reasonable suspicion as a means of getting to probable cause is such that it is essentially shreds the Fourth Amendment.  Tellingly enough, the Fourth Amendment contains no mention of any standard beneath probable cause as a justification for search and seizure. But don’t expect a document with principles sacrosanct to the Republic to stop your local and state legislators.  Their enthusiasm for new laws and standards is exceeded only by their vim and vigor in trampling old rights.  


There is a mistaken notion common within our Republic, and it has directly enabled federal, state, and local government officials to ride roughshod over individual liberties.  The notion is this: that individual rights as outlined by the Bill of Rights and subsequent amendments are merely enumerations of individual power.  They are so much more than that; in point of fact, they are the very fortress walls against which government power cannot legitimately prevail.  


The heresy of reasonable suspicion has its genesis in Terry v. Ohio, where the Supreme Court found that an officer could detain and search a person without probable cause.  He need only have reasonable suspicion that a person had committed, was committing, or would commit a crime.  The reasonable suspicion had to be based on “specific and articulable facts,” the absurdity of which ought to be evident when one considers that the Court had to erect such a vague standard for action.  


Moreover, the 4th Amendment contains within it no such lesser standard.  The Court made note of its own notion, as the Court is wont to do, that “the exclusionary rule has its limitations.”  Of course, those limitations are not contained within the 4th Amendment, which reads as follows, with my own emphasis added: 


“ 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.”  


That is not to say that I disagree with the notion that there are practical exceptions to this: if one sees a man entering a bank with a gun drawn, one can deduce that a crime is in progress. This is probable cause and not reasonable suspicion, and the police officer does not have time to go about seeking a warrant to prevent a crime already in progress.  A further instance might be the individual who drives erratically and is stopped by a patrolman.  In the event that motor capacities are obviously impaired or speech is slurred, the patrolman would have probable cause to administer a field sobriety test and search the vehicle for intoxicating agents.  Again, given the metabolic factors involved, the officer has every reason to act before attaining a warrant.  


But given the clear cut reality of probable cause in either of the above instances, one has only to ask why it is that a lesser standard is required.  In the case of Terry v. Ohio, the trial court had rejected the prosecutor’s argument that the defendants’ guns had been seized during a lawful search, yet the court allowed the guns to be admitted as evidence regardless on the grounds that the officer in question had a reasonable cause to believe the defendants were armed.  Convoluted, yes.  


The facts of the case were as follows: Terry and his friend Chilton alternately paced in front of a store window over a dozen times.  They then met around the corner with their friend Katz.  The observing officer, a Detective McFadden, observed this behavior and followed the men a couple of blocks, where he accosted them and identified himself as a police officer.  After one of the men mumbled, McFadden executed a pat down on the men.  He felt a gun on the first man, ordered all three into a store, and lined them up against the wall.  He patted down the other two men, and removed guns from Terry and Chilton, after which he arrested all three.  Terry and Chilton were charged with carrying concealed weapons.  


Given their behavior, one could logically argue that Detective McFadden had probable cause.  After all, their behavior was consistent with that of individuals casing a location.  Moreover, in the course of the pat down, Detective McFadden felt weapons on two of the three suspects.  The possession of concealed weapons was a crime in Cleveland.  But the trial court erred in their view of the search, which gave Terry a reason to appeal.  The appellate court and the Ohio State Supreme Court both upheld the convictions, and Terry appealed to the Supreme Court.  


Rather than merely ruling that Detective McFadden had probable cause (which he did, given the behavior of the suspects and its conformity to that of criminals casing a location for a robbery) to conduct his search, which turned up concealed weapons on two of the suspects, the Court held for a lesser standard of reasonable suspicion, given the Court’s inability employ common sense.  There is a perverse need within practitioners and judges of the law to find the most convoluted and tortured solution and go with it as their final answer, and that is exactly what happened in Terry v. Ohio.  


The Court held that the Fourth Amendment prohibited unreasonable searches and seizures, and therefore reasonable searches and seizures were permissible.  You don’t say.  Yes, reasonable searches and seizures as defined by probable cause were and are permissible.  Reasonable in and of itself does not constitute a halfway house on the road to probable cause.  


The fact that courts and governments have to engage in such interpretative and statutory contortions should tell you all you need to know about the legitimacy of their reasoning.  The issue is never about making the Constitution applicable in a practical way to real world situations that defy the explicit letter of the law; it is instead about eroding the limitation on governmental power that individual liberties present.  It is, without exception or qualification, about expanding government power by constricting and limiting the liberty of individuals in the face of their government.  


The government does not need lowered constitutional standards to fulfill its mission of enforcing law and preventing criminal malfeasance; it merely needs to act in a competent and common sense manner.  I submit to you that in virtually every instance where our federal government has contended that new laws are needed to prevent future recurrences of past tragedies, especially where terrorist acts are concerned, the initial acts could have been prevented by mere competence in utilizing the existing power of the government as provided for by the law and the Constitution.  The problem was not that the government lacked enough power; rather, it was that the government did not use the existing power it already possessed in a competent manner.  


In the case of Arizona, the government at the federal level had an abundance of power to confront the problem of illegal aliens and border security, and it merely refused to address the issue.  The state government had ample power to stop overloaded vehicles in any instance, as most municipalities have laws against such behavior, ostensibly for reasons of safety.  In the course of citing the occupants of the vehicle, identification would have been required.  Should no identification have been present, the officer would have had probable cause to arrest and detain the occupants of the vehicle until their identification could be verified.  In the course of that process, should it have become apparent that the individuals 


There was no reason to erect a halfway house on the road to probable cause in order to find some excuse to constitutional restraint on government.  All that was required was the enforcement of existing law in a common sense manner.  Some expansion was required in order for the state to take on the role of immigration enforcement, but any change to the law would have been minor and would not have had any bearing on the exclusionary rule whatsoever.  We must always regard any such effort to erode constitutional checks on government power with suspicions and wariness, because any liability incurred will be paid by the taxpayers who fund state governments.  It is therefore extraordinarily hard to make government officials feel the sting of culpability in their own wallets.  Thus they have no incentive whatsoever to worry about such issues.  




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Wednesday, April 28, 2010

Passing the Bucket: The Government and Goldman

Passing the Bucket: The Government and Goldman


Goldman Sachs went down to D.C. yesterday for the obligatory perp walk, and the Senators sat in judgment as a modern day Sanhedrin.  Unlike their philosophical namesakes, however, there were a few Pilates on the Sanhedrin this time.  Republicans like Tom Coburn attempted to do something novel in D.C. these days: withhold judgment.  That is largely because judgment, if there is to be any, ought to be reserved for the very men and women sitting on the dais as Senators.  


What we are witnessing today is nothing more than a governmental attempt to pass the bucket.  What is manifestly absurd about the entire spectacle is that the Javerts of the Senate are attempting to vilify Goldman for fulfilling the one fiduciary duty Goldman actually had and did an admirably efficient job of fulfilling: the obligation to make its shareholders lots of money.  I remarked early on in the hearings that I would never park my money with Goldman as a customer; with that said, however, I would have bought shares in Goldman.  


The facts of the day are as follows: 


  1. The government created the regulatory conditions for the housing bubble by passing Gramm Leach Bliley and the Commodity Futures Modernization Act.  
  2. The government created the liquidity out of thin air by expanding the monetary supply, which led to excess liquidity which went into subprime mortgages. 
  3. The government failed to prosecute the rampant fraud within the mortgage industry which occurred in the middle to late part of the decade, and the government is still failing to prosecute the fraud.
  4. Government officials, elected and otherwise, but especially the elected ones, intervened within the market to lower risk management standards and to encourage the extension of credit and mortgages to high risk customers (i.e. people with low FICO scores).  It got so bad that Barney Frank, the representative who sits in oversight of the financial industry, was dating an executive from Fannie Mae.  
  5. If there is a bucket of blame for what occurred in the financial collapse, it belongs to the government.  From the latter years of the Clinton Administration on, Robert Rubin, Larry Summers, Phil Gramm, and various others encouraged and even advocated the very deregulation and lax standards which led to the present day.  


Americans should not forget the utter corruption and incompetence of their government in November, no matter how many sham hearings occur between the present day and the elections.  It may feel good to watch your elected representatives and senators lambast financial executives and rake them over the coals, but those executives only took up the slack in their leashes as extended by those very men and women who now have the audacity to pretend as those the bucket of shame belongs solely to those executives.  Those executives did exactly what they were supposed to do: they fulfilled their fiduciary duty to their shareholders by doing what it took to make vast profits.  Our elected representatives are the only ones in this entire debacle who abdicated a fiduciary duty: their duty to us as constituents to maintain some semblance of order and stability in the markets by imposing reasonable limits in liquidity and regulation. 


  Everything those executives did, no matter how unseemly, was apparently legal.  That says something about the lawgivers more than it will ever say about those who managed to follow the law to profit.  It was unethical; it was perhaps even morally wrong, but it was not illegal.  The laws were written to enable this type of behavior, and they were passed with near unanimity in both the House and the Senate.  


In a normal arrangement, what Goldman did would have been termed fraud. There’s only one problem with this notion: Goldman was selling a product, and its clients knew that Goldman had an ulterior motive.  In the casino of the market, Goldman was the blackjack dealer and its customers were the saps pinning their futures to 21.  No gambler would ever assume that the dealer has his best interest at heart.  There would have been no objection by Congress had the gamblers beat the house.  


If the government wants to pass the bucket, it should call Rubin, Summers, Greenspan, and Gramm back for a perp walk.  At least it would be making some progress with actual guilty parties.  It’s a testament to the obtuse qualities within our government that our elected officials cannot fathom how they failed and the extent of their own culpability in creating and amplifying the economic catastrophe within which we are currently mired.  



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Monday, April 26, 2010

Dr. Feelgood as Law: Arizona and Illegal Aliens



This past week, Arizona went and got tough with illegal aliens.  Predictably enough, the state legislature went too damn far and almost certainly ensured that a resulting backlash will lead to greater muddying of the waters on the issue of aliens, which is exactly what proponents of blanket amnesty want.  Never underestimate the stupidity of elected ideologues in small groups, whether they are for or against amnesty.  


The net result of the Arizona statute is that the police will now be vested with the power to go and ask people for papers indicating their legal residency if they suspect individuals of being in the state illegally.  How, exactly, does one determine which Hispanics, or for that matter, which European looking individuals, are here legally with a mere glance?  And how many of us are accustomed to carrying around papers to prove our legal status as residents and citizens of the United States? 


For those of us who are in the camp of strong immigration law, I say this: we have strong immigration laws.  The federal government just simply and obstinately refuses to enforce them.  Moreover, state law enforcement refuses to acknowledge the obvious: in a nation containing 12 to 15 million illegal aliens, pulling them over one at a time in order to determine their legal or illegal status is an asinine way of going about matters.  


The wisest course of action would be to arrest, charge, try, convict, and imprison those businessmen and women whose companies hire illegal aliens.  I guarantee you that this method would work to reduce the number of illegal aliens in the country.  Moreover, I can assure that without a demand for their labor, the illegals would go back to wherever it is they came from.  


The hysteria over Arizona’s border security is somewhat justified: Arizonans have been murdered by illegals, and residents are being kidnapped and whisked across the border by Mexican drug cartels from municipalities like Phoenix.  In prior times, we would have gone to war over such incursions.  In the current day, our federal government is absolutely feckless.  Due to this reality, nothing happens in the way of enforcement.  But let’s be honest: if the invading horde of alien labor were so prone to violence, the wealthy Anglo contractors and their wives would not be hiring them as laborers and lawn manicurists.  They certainly wouldn’t be retaining homicidal Latinas to serve as nannies.  If there was such an epidemic of violence among aliens, then the wall on the Mexican border would have already been built.  After all, no one messes with the campaign donor class. 


The issue of immigration is a federal matter, and it is telling sign of the federal government’s total lack of effort on this issue that a state even felt compelled to pass such a statute.  But the federal government failed, and everyone in Arizona is up in arms, and what is more tragic, they’re all angry at the wrong party.  The Hispanics are mad at the purportedly xenophobic Anglos who supported this legislation, and the Anglos are all mad at the Hispanics for supporting blanket amnesty without regard for the effects on state services and state resources.  Both parties would do well to turn their ire towards the federal government, which is where their wrath ought to be focused in November.    


It is high time the federal government decided to take a stance on illegal aliens as an issue apart from immigration, because coming here illegally has nothing to do with immigration and everything to do with breaking the law and trespassing the borders of a sovereign nation and its states.  However, targeting the aliens themselves is utterly useless.  We will not deport 12 to 15 million people overnight, or even within a year’s time.  We can, however, take a tough stance with their employers and make them liable for the federal and state services consumed by their illegal laborers.  We can also prosecute them, fine them, and even through them in jail.  


If Arizona was serious about ending its problems with illegal immigration, its state officials might consider suing the corporations and businesses responsible for hiring undocumented workers to recoup the cost of state services in the form of medical care.  What’s more, the Arizona legislature would do well to make employers liable for civil suits from hospitals and emergency rooms.  Dry up the demand, and you’ll dry up the problem of illegal aliens.  It’s that simple, and it doesn’t require transforming your state into the equivalent of Soviet Russia, where the police can stop you and request your papers on a whim.  

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