Police Abuse

Sotomayor to Justice Department Lawyer: 'We Can't Keep Bending the Fourth Amendment to the Resources of Law Enforcement'

Sonia Sotomayor stands up for the Fourth Amendment in drug-sniffing dog case.

|

Credit: White House / Flickr.com

The Supreme Court heard oral argument yesterday in the Fourth Amendment case Rodriguez v. United States. At issue is whether an officer "unnecessarily prolonged" an otherwise legal traffic stop when he called for backup in order to safely walk a drug-sniffing dog around the stopped vehicle. According to a previous Supreme Court ruling, the use of drug dogs during routine traffic stops poses no constitutional problems so long as the traffic stop is not "prolonged beyond the time reasonably required to complete that mission."

According to Justice Department lawyer Ginger Anders, who argued yesterday in defense of the police, law enforcement is entitled to wide leeway when it comes to determining the amount of time that's "reasonably required" to conduct traffic stops.

But that argument met with strong resistance from several members of the Court, particularly Justice Sonia Sotomayor. Indeed, Sotomayor went so far as to suggest that the Court's recent Fourth Amendment jurisprudence was flying off the rails due to its pro-police deference. Here's a sample of what Sotomayor told the government lawyer:

I have a real fundamental question, because this line drawing is only here because we've now created a Fourth Amendment entitlement to search for drugs using dogs, whenever anybody's stopped. Because that's what you're proposing. And is that really what the Fourth Amendment should permit?

…we can't keep bending the Fourth Amendment to the resources of law enforcement. Particularly when this stop is not—is not incidental to the purpose of the stop. It's purely to help the police get more criminals, yes. But then the Fourth Amendment becomes a useless piece of paper.

This was not Sotomayor's first such defense of the Fourth Amendment. In fact, just last month she cast a lone dissent in Heien v. North Carolina, in which the Court's majority held that an erroneous traffic stop caused by a police officer's "mistake of law" did not amount to an unreasonable search and seizure. Yet as Sotomayor observed in dissent, "police stopped Heien on suspicion of committing an offense that never actually existed." The officer was wrong about the very law he was sworn to uphold. "One is left to wonder," Sotomayor wrote, "why an innocent citizen should be made to shoulder the burden" of such police mistakes.

Advertisement

NEXT: Income Inequality Is a Problem—When Caused by Government Meddling

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Ya know, Soyomayor has turned out better than I thought. Granted, I thought she would be one of the worst, so this was a low bar to clear. But, nonetheless . . .

    1. She has turned out to be a pleasant surprise regarding civil rights.

    2. She is Justice Harlan compared to Kagan.

    3. She’s probably the best justice on the Court when it comes to the 4th Amendment. Admittedly, that’s not saying much, but at least one of them seems to care a little.

      1. It is because she is the only justice who has seen the inside of a District Court and thus understands how these things actually work in practice.

    4. My thoughts exactly RC.

      1. And mine.

        1. I’m in agreement too.

    5. It’s a low bar to clear, especially when the other ones are experts at doing the Limbo.

      1. nice!

    6. I think she was a good appointment by Obama. On issues of policing powers, I like her a lot more than any of the conservative judges, even if Scalia sometimes stumbles into a good opinion by mistake through his bloviating.

    7. I think I would say that she’s not been as bad as I thought she would be. A few pointed questions about the Fourth Amendment, even in an effort to make a point with which I agree, don’t even begin to make up for her shortcomings when it comes to the Second Amendment.

    8. I think my position is that she’s not been as bad as I thought she would be-a subtle (if not meaningless) distinction from your point. That she asks a few pointed questions about the 4th Amendment, even questions seemingly in defense of it, does not even begin to make up for her record on the Second Amendment.

  2. “One is left to wonder,” Sotomayor wrote, “why an innocent citizen should be made to shoulder the burden” of such police mistakes.

    Why? Fuck you. That’s why.

    1. One is also left to wonder why a guilty person, who has exactly the same due process rights as an innocent person, should be made to shoulder these burdens as well.

      1. What innocent person? Cops don’t arrest innocent people. They arrest bad guys. Some of these bad guys manage to hire good attorneys to get them off (asset forfeiture is an attempt to prevent this), but they’re all guilty. At least that’s my observation from watching the conduct of cops, prosecutors, and judges.

        1. That is the problem with the exclusionary rule. If the police violate my rights and find no evidence of a crime, the rule provides me no relief since there is no evidence to suppress. The exclusionary rule only benefits me if I am guilty and can avail myself of the benefit of evidence of that guilt being inadmissible in court.

          In some ways the exclusionary rule has spelled the death of the 4th Amendment because it caused the public to think of the 4th Amendment as something to protect the guilty rather than something that protects everyone.

          I think instead of the exclusionary rule, the Courts should have enforced the 4th Amendment through civil judgments against any government that violates it. If the police come into my house in violation of the 4th Amendment, they are trespassers and I should be able to collect damages from them being such. If they find evidence of a crime, go ahead and admit it but let me sue for damages of their trespass.

          If courts had taken that approach, the public wouldn’t have viewed the 4th Amendment as a protection of the guilty but as a protection of their rights. It would give the innocent a reason to care about the rule since any change would affect their ability to collect damages. If that were true, we would have a lot more 4th Amendment protections than we do.

          1. Collect damages? How’s about criminal charges? If evidence is collected illegally, then isn’t it by definition evidence of a crime committed by those who collected it?

            1. But throwing the cop in jail doesn’t benefit me. I want cash. The problem with criminal charges is that the public is loath to throw cops in jail and wouldn’t benefit from it happening anyway. You have to give them an incentive to care about these issues and see them as something other than technicalities that allow the guilty to escape justice.

              1. The public wouldn’t benefit from throwing cops in jail when they commit crimes?

                I completely disagree. If cops knew they were at risk of being locked up with people they helped to lock up when they acted outside the law, then maybe they’d think twice before illegally collecting evidence, filing false reports, assaulting people, committing perjury, and all the other illegal acts they inflict upon the public on a regular basis.

                1. The public wouldn’t benefit from throwing cops in jail when they commit crimes?

                  Not directly no. Yes, in the grand scheme of things cops would be more careful. But the public doesn’t and never will see that. And they also see cops being deterred as making them less effective at catching the guilty. So they do not and will never care about throwing cops in jail. If they did, we wouldn’t have many of the problems we do, since cops commit crimes now yet no one cares to punish them for it.

                  They would, however, care if they actually got paid when a cop violated their rights.

                  1. John when the cop illegally enters your house and you then receive a judgement the cop isn’t punished for his misbehavior, your neighbors are.

                    Why not have both remedies available ?

                    Making the government give you some of the money it takes from your neighbors and penalizing the cop lawbreaker personally as well would put a total stop to it.

                2. More likely they would simply make sure they have a variety of evidence to plant so when it turns out they were wrong they still avoid punishment. I do think aggressive prosecutions and treble punishments would help. Ie if I would go to jail for 2 years a cop should go to jail for 6 for the same offense when committed on duty. I would make it 5 times the actual criminal punishment for false reports, perjury etc. So if they lie in a capital case we get to execute them 5 times.

                  There is dead and there is dead dead.

              2. Throwing the cop in fail benefits everyone, since presumably it will deter cops from doing the same thing in the future.

                1. Brian, that is not how the public sees it. They see throwing a cop in jail as just preventing them from doing their jobs. You are never going to get the public to give a shit about these issues if the carrot you offer them is punishing cops.

                  Not everyone is a Libertarian or thinks like you do.

                2. Clearly. The problem is that the people that we rely on to put cops in jail won’t do so when they have the opportunity, even in cases that would otherwise be obvious. John’s proposing a workaround to how deferential juries are to policemen, particularly on-duty policemen.

                  1. Exactly KDN. You are never going to get the public to start throwing cops in jail with any frequency. They see cops as being on their side and the job of being one as being really hard. So they are loath to criminalize anything a cop does on duty.

                    They would, however, be much more amenable to compensating people whose rights have been violated by cops. Set up a system where the remedy for a rights violation is cash, and you could change a few things.

                    1. I’m betting that if such a regime were ever in place the PBA would add a clause in their contracts requiring municipalities to pick up the tab for any such lawsuits.

                    2. Of course they would. And in an ideal world, that wouldn’t happen and we would not have qualified immunity.

                      But even with that, it still would make things better. It would give people whose rights are violated real compensation and it would finally get the public to see the 4th Amendment as something that benefits them not just the guilty.

                      And even with the city paying out the settlements, it would still cause cities to deter their cops. Since it would cost them money, there would finally be a limit to what cities would tolerate.

                    3. I vote for both criminal and civil action.

                    4. So do I Fransisco. I would vote for a lot of things. But that doesn’t mean I am going to get it.

                      If your plan to fix this is “we will just start throwing cops in jail”, you have no plan, because that is never going to happen. The public doesn’t want to do it.

              3. But throwing the cop in jail doesn’t benefit me.

                No, but it benefits society in exactly the same way throwing any criminal in jail benefits society.

                1. the same way throwing any criminal in jail benefits society.

                  In fact…it IS throwing a criminal in jail (or would be).

                  Comes back (again and again) to the problem being that pigs are exempt from the laws they enforce, either by law or the fact that there is no one to arrest them.

                2. No, but it benefits society in exactly the same way throwing any criminal in jail benefits society.

                  How many more people on this board can completely miss the fucking point on this thread? Everyone?

                  No shit RC. I get that. But the public doesn’t and will never see it that way. If they did, we wouldn’t have the problems we do now, since the laws as written do not make it particularly hard to send a cop to jail. The problem is juries and DA’s are loath to do it no matter what the law says.

                  For the fifth time on this thread people will only care about this issue if it directly benefits them not because of the general benefit of deterring cops.

                  If someone disagrees with that, I would be curious to hear why. But whatever your point, please spare me that “but the public does benefit from deterring cops” point like I am some sort of retard who doesn’t understand that. I get that. But the public doesn’t and won’t ever see it that way. That is my point.

                  1. Jeez, John. Back away from the caffeine.

                    I posted, and then saw a whole bunch of further discussion on my point.

                    I do question this, though:

                    people will only care about this issue if it directly benefits them

                    People support all sorts of criminal laws that don’t directly benefit them.

                3. What we want, from a society viewpoint, is to inhibit and discourage illegal actions by government officials. The exclusionary rule offers some deterrence in some situations, but it’s clearly inadequate as a general deterrence.

                  Cops, prosecutors, etc. need to face personal liability, both criminal and civil, for acting outside the law. I see no reason for granting them immunity for actions that aren’t legal in the first place.

                  1. The exclusionary rule offers some deterrence in some situations, but it’s clearly inadequate as a general deterrence.

                    The cost of that deterrence is letting guilty people go free. The public hates that and thus by extension is largely either ambivalent or outright hostile to the Amendment. It is an amendment that is enforced in a way that benefits people the public wants to punish and to the public’s at least does nothing to benefit them.

                    If you want the public to care about the 4th Amendment, enforce it in a way that directly benefits someone besides the guilty. The general benefit of deterring cops is not something that is every going to get the public to like or care about the Amendment.

                    1. I think we have to keep the rule in place, knowing that even a regime that allows for personal liability won’t be enforced very strictly. The government has to fear the consequences of illegally obtained evidence.

                    2. I think we have to keep the rule in place, knowing that even a regime that allows for personal liability won’t be enforced very strictly.

                      I would kill it. As long as you have it, the price of extending 4th Amendment protection is allowing guilty people to go free. And both the courts and the public have shown that is a price they are unwilling to pay. The result of the exclusionary rule has been the courts making one exception after another because they worry that enforcing the amendment will lead to too many guilty people walking free.

                      There is nothing in the Constitution or common law that says an illegal search should be a get out of jail free card. The court invented the rule out of thin air as a way to enforce the amendment. I think that was a mistake. If a cop violates my rights, my remedy should be damages for that violation, not getting away with a crime.

                    3. There is nothing in the Constitution or common law that says an illegal search should be a get out of jail free card.

                      Its a violation of due process. Why should a conviction that is tainted with due process violations be upheld?

                    4. Its a violation of due process.

                      No its not. Due process is different from the 4th Amendment. I suppose at some point a 4th Amendment violation could be so gross as to constitute a violation of due process. But an ordinary search without probable cause wouldn’t.

                      Think of it this way RC. When the court changes or clarifies search and seizure law, previous convictions are not overturned. The rule only applies going forward. So if I am convicted today on evidence obtained in a search based on circumstances that ten years from now in another case the court rules is illegal, my conviction doesn’t get over turned and I don’t get out of jail. If the 4th Amendment were a due process issue, my conviction would have to be overturned because it would violate my due process rights. The two issues are separate.

                    5. When the court changes or clarifies search and seizure law, previous convictions are not overturned. The rule only applies going forward.

                      Sometimes, cases overturning or changing law are applied retroactively. It varies, based on a lot of factors. Sometimes, the new standard is applied in any case that is still not completely final (that is, is still under appeal or can be appealed). But you’re right that changes to these sorts of things are not given full retroactive effect.

                      Rules of evidence are due process rules, IMO, as they govern the judicial process, no? I realize the courts may not share this view, but fuck ’em if they don’t. Admissibility is a rule of evidence. I kinda think that whether evidence must be legally obtained in order to be admissible is a due process requirement.

                      Is the requirement to get a warrant (which results from judicial process) a due process requirement? If its not regarded as such, I think it should be.

                      Of course, I don’t illegally obtained evidence should ever be admissible, in civil or criminal courts. Again, I know the courts don’t share this view, so fuck ’em.

                    6. Sometimes, cases overturning or changing law are applied retroactively. It varies, based on a lot of factors. Sometimes, the new standard is applied in any case that is still not completely final (that is, is still under appeal or can be appealed). But you’re right that changes to these sorts of things are not given full retroactive effect.

                      Yes they are RC. When it is a due process issue. They are not in search and seizure cases and never have been because those are not due process issues. It is two separate things.

                      Is the requirement to get a warrant (which results from judicial process) a due process requirement?

                      No because due process relates to process not conviction. You are not convicting me when you enter my house. That is not process. Process is what happens in court. If I am convicted based on evidence illegally obtained, has my due process been violated? Not really as counter intuitive as that sounds. Due process concerns my ability to defend myself and get a fair hearing. The cops kicking down my door and getting the evidence that is used at trial, doesn’t mean my trial wasn’t fair. It means the cops violated my rights. Indeed, if cops violate your rights and illegally obtain evidence against you, that evidence can be used against me. I have no standing to object to the cops violating your rights. If introducing illegally obtained evidence were a due process issue, evidence illegally obtained from you couldn’t be used against me.

                    7. John, you are suggesting that a pig should have some punishment for conducting an illegal search but the evidence should still be admissable. How would that work in practice?

                      Let’s say the penalty was 60 days of unpaid leave and $500 fine. Then each time the pig encountered a suspect he would have to weigh whether it was worth risking that penalty to go searching illegally (provided the evidence could still be used against the perp). That seems like an improvement on the current situation.

                    8. Yes BigT, that is exactly what I am suggesting.

                    9. Maybe the “T” in “BigT” stands for torpor because, by your theory – a multi thousand dollar fine for the “pig” would simply result in the “pig” never arresting a criminal, no matter how sure he was of the legitimacy of the evidence he would have to seize.
                      Two month’s pay, plus $500 would be too high a price for anyone to risk, and, as anyone familiar with the legal system will tell you, there is always a risk a ruling will go against you.

                4. Benefit society? You mean by spending vast amounts of money to turn low level criminals into high level criminals, while making prison unions and the prison industry happy?

              4. Wha you want is victim prosecution, so YOU can negotiate wth the criminal: how much is he or his employer willing to pay to keep him out of jail?

              5. Screw the cash, I want time and reputation. Since I can’t have mine back, I want some of the cop’s… triple damages would be nice.

              6. You’ve got an interesting pragmatic twist on the fourth amendment. My idea has always beensomewhat similar, in that the exclusionary rule is twaddle; what counts is the evidence itself, and whether it was obtained illegally ro not has no bearing on the evidence itself, only its provenance. Anyone who obtains evidence illegally can only prove its provenance and chain of control by confessing to the crime of stealing it.

                If it’s a cop without a warrant, with a dishonest warrant, or exceeding an honest warrant, the choices are pretty clear: withhold the evidence and confession to the crime of obtaining it, in the hope of the other party leaving matters alone; fight the determination that it was illegally obtained; pretend it just fell into your lap or was sent in by an anonymous source, and lose a lot of credibility as to its authenticity. Either way the evidence should be considered on its own merits.

                It would be pretty much the same for evidence stolen Perry Mason-style by civilians sneaking into houses and collecting evidence. The primary practical difference would be no warrant to fall back on.

          2. The exclusionary rule doesn’t preclude such causes of action, it’s an added layer of disincentive.

            1. No it doesn’t. But that is not the point. The point is that since the exclusionary rule only benefits the guilty and is the only way courts enforce the 4th Amendment, people have come to see the 4th Amendment as a protection of the guilty instead of a protection for everyone. This is why it needs to go and the courts need to enforce the Amendment in a way that benefits everyone. That way people will see the Amendment as what it is rather than a loophole to protect the guilty.

              1. I guess we could make it easier in some way to bring or win these causes of action, but they’ve been available the whole time.

                1. No they are not Bo. Qualified immunity prevents any suit against a cop or a government for simple negligence. If a cop screws up and searches your car without probable cause, you have no civil remedy unless you can show he knowingly violated settled law, something that is virtually impossible to prove since you can’t read his mind, or that he went after you because of your race. That is it. The “cop just didn’t give a fuck and searched my car” example, at best means any evidence he finds gets suppressed. If there is no evidence and you had your rights violated, you are out of luck.

                  1. I get it john, but that system would be abused to hell, you would no longer have a 4th amendment protection because there will always be a cop willing to get the department sued to get his guy, if hes not personally liable he will never care.
                    until they start going to jail for the recommended 10 years under 18 USC 242 (violation of civil rights under the color of law)they will NEVER change.

                    1. I get it john, but that system would be abused to hell, you would no longer have a 4th amendment protection because there will always be a cop willing to get the department sued to get his guy, if hes not personally liable he will never care.

                      Sure you would have some of that no doubt. But your hypothetical assumes they have the right guy. There would most certainly be cases where the cops decided Joe Blow was guilty and said fuck it and violated his rights to get a conviction figuring they would pay the fine later. But that would be less often than you think. They don’t often know which guy to go after.

                      What would stop would be going after random people on the theory that if they don’t find anything no worries and if they do, they can just lie or get a sympathetic judge to do the right thing. And that sort of thing happens now much more than the situation I describe above.

                      Lastly, since the public would have a remedy when cops harrased them, the public would see the 4th Amendment as a protection rather than a loophole and demand it be respected. Right now the cops violate the 4th Amendment and get away with it because the public largely doesn’t care. And the public doesn’t care because they see it as just something courts designed to let guilty people go free. Until you kill the exclusionary rule, that attitude will never change and you will continue to see the 4th Amendment being written out of the Constitution.

                    2. Maybe, Vic, but, if you threw a cop in jail for ten years for making a mistake you would NEVER get anyone to sign up for the job.
                      Yes, I know that’s what libertine/arians want but that’s also why they don’t get much support by the normal population.

                    3. Go fuck yourself with your “libertine/arians” crap.

                      Wanting cops to be punished for violating our rights is not saying we don’t want any cops. But thanks for admitting that cops are just a bunch of neanderthals who couldn’t possibly do their jobs if they had to follow the fucking law.

                  2. plus this is terrible until we reach a libertarian society where victimless crimes are no longer crimes, i believe the majority of those who get off on the exclusionary rule are not criminals but victims of criminal legislature so its been a pretty good rule IMO for protecting the shreds of rights we have left

                    1. Two different issues Vic. I see your point about the drug war. But you shouldn’t destroy the 4th Amendment to blunt its effects anymore than we should let the drug warriors destroy it in a vain attempt to make it successful.

                    2. how is making evidence found during an illegal search in-admissible blunting the effects of the 4th?
                      the spirit of the 4th is you have the right to be left alone by the government unless they have a specific reason to fuck with you, not allowing them to admit evidence unless it was obtained in a constitutionally legal search is not a great boon for “criminals” its a relatively low bar of standards to go have a judge rubber stamp a search warrant if you have a “legitimate” reason to harass your citizens

                    3. Like i said, if this were libertopia im all for private lawsuits between citizens if a cop violated the rights of a citizen, said citizen should be able to seek just compensation from the cop who violated his rights.
                      but then again libertopia would have hundreds of private security firms and private arbitration courts instead of monopolized police unions and a despicable extension of oppression known as the court system

                    4. but then again libertopia would have hundreds of private security firms and private arbitration courts instead of monopolized police unions and a despicable extension of oppression known as the court system

                      And what possible rights would you have in a private court? The Constitution only applies to the government. You do understand that private courts would have no reason or incentive to respect your rights. As long as it get the right result, why should a private court care about how the result was obtained?

                    5. how is making evidence found during an illegal search in-admissible blunting the effects of the 4th?

                      It doesn’t. It just makes the 4th Amendment mean guilty people go free. There are other ways to enforce the 4th Amendment that don’t mean that and would thus make people less hostile towards it.

                      the spirit of the 4th is you have the right to be left alone by the government unless they have a specific reason to fuck with you,

                      Sure it is. And the question is how best to we make sure it means that. Right now, they are free to fuck with you and only people guilty of crimes have any sort of remedy. That seems awfully stupid to me. If you want the government not to fuck with you, make them pay the price for doing so regardless of whether you are in fact guilty of a crime or not. Whether I am guilty of a crime and deserve to go to prison is a totally different issue from whether the cops were right to fuck with me in the first place. Just because the cops were wrong, shouldn’t me I get away with the crime or the cops pay no price because I am innocent.

                  3. Bad cops need more punishment.

          3. I’m pretty sure a court order excluding evidence for a violation of the Fourth Amendment makes a prima facie case against the cop under section 1983.

            1. Yes, I know about qualified immunity. But in this case, the settled law was that stops can’t be “unnecessarily prolonged”. It isn’t necessary to call for a drug sniffing dog on a routine traffic stop.

        2. What innocent person? Cops don’t arrest innocent people. They arrest bad guys non-cops.

          Fixed

          1. I am talking about search and seizure not arrest.

        3. I was watching Drugs, Inc. on Discovery last night. The cops pulled over a guy and found around $5k in cash on him.

          He told them some story about it being his GF’s money and he was going to use it to buy her a car.

          Cops called the GF, she corroborated it, and they let the guy go WITH his $5k in cash. I was astounded. Obviously these cops have not been to Highway Robbery class.

          Took place on I-10 between Houston and NOLA.

          1. No, they just didnt want to get caught on camera, they most likely phoned it in to another buddy up the road and had a strip club night later.

      2. to many of the cops – everyone is guilty -its just a matter of time before they get caught. And with as many laws as we have it is impossible to not break at least one law a day if not more.

  3. They are not bending the 4th,it’s more like beating it to death with a club.

  4. That is a great question. Courts have totally forgotten that the point of the exclusionary rule is to deter law enforcement abuses by prohibiting the government from introducing illegally obtained evidence. The Court has over the last 20 years taken the attitude of “just bend the rule so the government never has to pay for its mistakes”. No. That is not how it is supposed to work.

  5. …we can’t keep bending the Fourth Amendment to the resources of law enforcement.

    Eight other justices beg to differ.

    1. 8 out of 9 justices agree; fuck you, thats why

  6. http://www.usatoday.com/story/…../21960957/

    Journalism professor declares that any speech which might cause an audience to react violently (cough, all depictions of Mohammad, cough) should be illegal.

    1. ‘In 1919, the Supreme Court ruled speech that presents a “clear and present danger” is not protected by the First Amendment. Crying “fire” in a quiet, uninhabited place is one thing, the court said. But “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”‘

      This journalism professor has done nothing to change my opinion that anyone using the ‘fire in a crowded theater’ cliche is an idiot.

      1. Muslims are just forces of nature. You can’t expect them not to react violently. They are like retards seeing cake. The solution is not to expect the retard to stop being retarded. The solution is for everyone else to stop antagonizing the retard with cake.

        That is what the guy is saying in simpler and easier to understand terms.

        1. He also fails to understand a very simple fact, which is that if your free speech rights are dependent upon someone else’s reaction rather than the speech itself, you have no control over whether you’re doing something illegal.

          Other people can make it so you break the law ex post facto if they react violently in a way you could not have foreseen.

          Furthermore, it makes it so that the limits on free speech are explicitly defined by the most violent members of society. The people most likely to react violently get to tell the rest of society what their free speech rights are and use the state’s power as an extension of their own violent actions.

          1. It’s even more insidious. He’s bitching that as a third party to the situation, he’s been endangered and therefore he gets a veto.

          2. He doesn’t think deeply enough to even fail to understand those things since he doesn’t even try. He sees one group that he considers “oppressed” and another he does not. In his view, the oppressed always win, so Muslims get what they want.

            He would never agree to this principle applying to Christians or Americans or White people or any group he doesn’t consider “oppressed”. This guy would without batting an eye claim that it should be a crime for a a white person to utter a racial slur at a black person and it should be totally legal for a black person to do the same at a white person. And it would never occur to him why anyone would have a problem with that other than because they are racists and think hurling racial slurs is a good thing.

            1. He doesn’t think deeply enough to even fail to understand those things since he doesn’t even try.

              Earning tenure does not always lead to clearer thinking.

          3. if your free speech rights are dependent upon someone else’s reaction rather than the speech itself, you have no control over whether you’re doing something illegal.

            Well, of course, it has to be a “reasonable” someone else.

            Seriously, well said.

          4. Feature, not a bug.

          5. He also fails to understand a very simple fact, which is that if your free speech rights are dependent upon someone else’s reaction rather than the speech itself, you have no control over whether you’re doing something illegal.

            Other people can make it so you break the law ex post facto if they react violently in a way you could not have foreseen.

            Furthermore, it makes it so that the limits on free speech are explicitly defined by the most violent members of society. The people most likely to react violently get to tell the rest of society what their free speech rights are and use the state’s power as an extension of their own violent actions.

            *erupts in thunderous applause*

            Irish, thank you. I am going to save that and use it with your permission. A perfect rebuttal to that inane fucking argument.

          6. It’s a classic race-to-the-bottom scenario.

        2. best idea is not to let the retard into the kitchen where he might see the cake.
          In other words exclude muslims from entering the USA until whatever time that muslims learn respect for others and refrain from violence. Right now western culture and Islam are completely incompatible with each other.

          The Europeans must have been completely out of their minds to allow Muslims to emigrate into their countries. Now they have a huge problem of having a foreign nation living within their borders- the same problem that Jackson had with American Indians in the Southeastern US.
          What was Jackson’s solution? – deportation. That is what will probably happen with the Muslims as well but not without alot of misery on both sides.

          this is why you cannot have “open borders” and a lax immigration system – it leads to massive problems in the long run

          1. There’s one teensy problem with your analogy:

            The American Indians invited US in (as immigrants to a new land), not the other way around.

            1. Correct, it is A good lesson for Americans right there.

      2. Muhammad was a bullshit artist.

        EVERYBODY PANIC.

        1. Of course you know as well as I do, this guy doesn’t mean a word of this. If Christians or Jews decided to start dealing out violence whenever someone said something bad about their religion, this guy would be all for free speech.

          This is nothing but some pigs being more equal than others. Muslims are a favored group and thus everyone must surrender their freedom of speech to appease them. Christians and Jews are not. It is that simple.

          1. And he’s a liar. He misquoted Mencken.

            While free speech is one of democracy’s most important pillars, it has its limits. H.L. Mencken, the fabled columnist who described himself as “an extreme libertarian,” said that he believed in free speech”up to the last limits of the endurable.”

            Actual quote:

            I have believed all my life in free thought and free speech?up to and including the utmost limits of the endurable.

            1. Every word these sorts of people say is a lie. I am not kidding. Listen to a progressive and everything they say will be the exact opposite of the truth.

              1. Yeah, but it feels true! That’s what matters!

              2. This has been my observation as well. Furthermore, they use words in their opposite meaning.

          2. pigs

            I thought the p-word had been banned.

            1. If it hasn’t happened already, how long before some school takes Animal Farm off the reading list because the presence of pigs in it offends Muslims?

              I wouldn’t be surprised if that hasn’t already happened to Call of the Wild since it involves people having a pet dog, something these retarded barbarians are convinced is “unclean”.

              Seriously, devout Muslims will not own or touch dogs because they are “unclean”. It is the most retarded religion on earth.

              1. Actually, there’s some rather mixed views about dogs among Muslims. Muslim scholars have declared them to be ok (though they often draw the line at keeping them in the house).

                1. Muslim scholars have declared them to be ok

                  Ah, but has the US Senate?

                2. Actually, there’s some rather mixed views about dogs among Muslims.

                  The heckler’s veto doesn’t have to reflect widely held views. Just strongly held views.

                  1. Are you here to make serious comments to advance the debate or divert the discussion by nit-picking ? What kind of lawyer are you ?

                    (hope the sarc is clear)

              2. The dog thing is the only thing that I agree with Muslims on, unless I need a watchdog. Cats are worse, unless I need a mouser.

        2. Muhammad was the L. Ron Hubbart of the sixth century.

        3. Muhammad was the L. Ron Hubbart of the sixth century.

          1. That Old Mother, Hubbard.

      3. The instant I hear someone start mouthing about ‘shouting fire in a crowded theater’ I turn them off.

        I love that the guy uses the term ‘toxic talk’. For this crowd free speech means you are only allowed to say certain approved things.

      4. This journalism professor has done nothing to change my opinion that anyone using the ‘fire in a crowded theater’ cliche is an idiot.

        That is a very useful benchmark.

        It’s always fun to ask the person if they know anything about the case that quote is from.

    2. And if the day comes when a woman not wearing a head scarf incites violence, I guess this guy will be okay with telling women to start wearing them and stop dressing as they choose.

      Dress is in addition to a way to stay warm, a form of speech. So if a woman’s dress incites violence, that case is no different than if a cartoon does. IN both cases this guy thinks the burden should be on the speaker not the criminal.

      1. For his sake, I hope that idiot already has tenure.

        Were I dean, I’d bounce any prof that lacking in reasoning faculties back to Janitor, 3rd Grade.

        1. He is the Dean of the Journalism School. I am sure he is a campus darling.

          1. Holy fuck. Time to eliminate that department.

            Seriously, what happened to shame? I’d be embarrassed to say anything that gobsmackingly stupid.

            1. Spend your entire life sitting around smelling other leftists’ farts and whatever shame or good sense you had to start with is long gone.

    3. Twenty-two years later, the Supreme Court ruled that forms of expression that “inflict injury or tend to incite an immediate breach of the peace” are fighting words that are not protected by the First Amendment.

      If Charlie Hebdo’s irreverent portrayal of Mohammed before the Jan. 7 attack wasn’t thought to constitute fighting words, or a clear and present danger, there should be no doubt now that the newspaper’s continued mocking of the Islamic prophet incites violence. And it pushes Charlie Hebdo’s free speech claim beyond the limits of the endurable.

      Which part of “immediate” does that nimrod not understand? If “immediate” means “at some future time,” it means nothing at all.

      1. He completely misrepresents the ‘fighting words’ doctrine. First, it doesn’t get the person who commits an assault off the hook. If you punch me in the face, you are still guilty of battery no matter what I said to piss you off.

        Second, it is as you say “immediate”. It is not a blanket prohibition on speech. All it does is give the authorities the right to prevent a riot or violence by telling one or both parties to shut up. It means when you and I are at a bar and I am talking about your mother’s virtue, the cops can tell me to shut up without violating my 1st Amendment rights. It does not mean that they can stop me from going home and writing the same things in a blog post. It just means they can tell me to shut up at that one time in order to keep the peace.

    4. If Charlie HebdoAndres Serrano’s irreverent portrayal of MohammedPiss Christ before the Jan. 7 attackStux Display wasn’t thought to constitute fighting words, or a clear and present danger, there should be no doubt now that the newspaperartist’s continued mocking of the Islamic prophetCatholic religion incites violence. And it pushes Charlie Hebdo’sSerrano free speech claim beyond the limits of the endurable.

    5. Heckler’s veto writ large.

    6. Journalism professor declares

      Stop. I don’t want to know

      …that any speech which might cause an audience to react violently should be illegal.

      Wanting people who are violently assaulted because of what they say to be legally culpable for it? Talk about blaming the victim.

  7. But then the Fourth Amendment becomes a useless piece of paper.

    Feature, not bug.

  8. How much of her concern is due to the fact that the guy’s surname is Rodriguez?

    1. Um… she’s been pretty consistent in her SCOTUS 4th Amendment views across racial/ethnic boundaries… perhaps you didn’t read the part where she was the lone dissent in Heien?

  9. I can’t help noticing that Justice Scalia is gesturing his Italian in the background.

  10. “One is left to wonder,” Sotomayor wrote, “why an innocent citizen should be made to shoulder the burden” of such police mistakes.

    Because we’re all in this together!

    /proggie

  11. The constitution’s just a fucking piece of paper, though.

    1. Well, sometimes it’s a suicide pact.

      1. …or a living breathing document.

  12. In an off-handed way you can thank George W. Bush for this serendipity. You’ll recall that Bush nominated Harriet Miers, a sycophant, to the Supreme and he got his fingers burned from left and right for so doing.

    1. she was a moron – a bad choice as was Kagan and Sotomayor. All three were affirmative action hires and all three were ideological. None of them were exceptionally bright or had any major accomplishments before being nominated.

      Once again, in government it is more about what group you represent, what ideology you support and who you are buddies with than actual abilities.

      That is a major reason why the government is a miserable failure.

  13. we can’t keep bending the Fourth Amendment to the resources of law enforcement.

    What Fourth Amendment?

  14. Maybe it is true that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

    1. about the dumbest, most sexist/racist thing I have heard in a long, long time.

  15. we can’t keep bending the Fourth Amendment to the resources of law enforcement.

    And the courtroom echoed with raucous laughter.

  16. we can’t keep bending the Fourth Amendment to the resources of law enforcement.

    “If yoos knows what’s good for yas, you’ll keep wit da’ bendin.”

  17. Most people’s view of police is based on 2 or 3 hours of nightly propaganda on network tv. Police are the good guys, keeping us safe from the bad guys. And the 4th amemdment is how the bad guys get off on a “technicality”.

    They don’t care to know that in the cop’s eyes, they too are scumbags and POS’s. They won’t understand until the boot is on their neck.

    1. That is right it is. They see the 4th Amendment as something that was created to benefit criminals. When you understand that, you quickly understand why the Amendment gets so little respect from the Courts. Judges mostly do what they think the public wants.

      1. And most of the public is almost sweet in their child like naivete.

        Intelligent, educated people think I am making shit up when I tell them about qualified immunity, and absolute immunity. Or that the police actually have NO duty to protect you. If they ignore a 911 call and you get raped…too bad for you. Or the incredible power prosecutors have. Or three felonies a day.

        Nope, it’s all good guy and bad guys like some cliched roy rogers tv show. And they think they are the good guys, so not ill will ever happen to them.

        1. You really can’t hate Hollywood and the media enough. I cannot think of a single issue that they don’t affirmative make things worse and the public more ignorant about.

          1. Sort of OT, but in a similar vein.

            My ex was an intensive care nurse. So I heard stories from her and doctors she worked with. The gap between reality and TV is just like the reality gap regarding cops.

            One bit of wisdom I kept from a doctor was this. Anyone who has a pat answer to a difficult issue like abortion, or end of life decisions….doesn’t understand the issue.

            But people like their narrative simple.

            1. Yes. The thing about all medical decisions is that they are probably the most individualized decisions in existence. Every patient is different, every case is different. This is why socialized medicine is so evil. It takes the most individual and circumstance driven decisions and tries to centralize and manage them through bureaucracy. Doing that will always end in monstrous results.

              The end of life thing drives me crazy. I don’t know a single person who would choose to suffer or have treatments that are likely pointless or would want a loved one to do that. The problem is that it is not so easy to say which treatments are futile and which ones are life saving. It all depends and you can’t make one big rule to cover all cases without killing a lot of people and doing a lot of harm.

              1. You’ve made this point before. You don’t know which treatment was futile until after the fact. Which is exactly what happened when dealing with my mother’s passing. The measures they took near the end had some reasonable chance of success…except they failed.

                This is why people who flippantly say, when my time comes let me go, bother me. Having heard the doctor’s and nurse’s stories, it is almost never that black and white.

                1. Same thing happened with my mother. It totally drives me bonkers when people throw out the “80% of all health care costs occur in the last six months of life” statistic like that means we can cut health care costs by just telling doctors not to treat people who are terminal. It is such an evil fallacy.

            2. Anyone who has a pat answer to a difficult issue like abortion, or end of life decisions….doesn’t understand the issue.

              You have the right to kill yourself. You don’t have the right to kill another person (unless they’ve already murdered, or in self-defense). You own yourself.

              I wonder if that’s universally agreeable?

              1. What is the pat answer for the point at which during gestation the fetus becomes a person that cannot be killed?

                That’s the rub. There are differing views. IMHO we should use the same protocols as when we determine death – brain function. I think that would mean about 20 weeks, maybe a bit earlier.

                1. That’s the rub. There are differing views.

                  There is only one time in which people think a live human being has no rights, and that’s this time.

                  No, the brain dead are not alive. No, a tumor isn’t a human. No, a part of a human isn’t a human.

                  That’s why the pro “choice” must say “It’s a hard issue”. If it’s defined objectively, there isn’t much of a choice.

                  The “fetus” is a whole human being which will grow into what every other human knows is a “person” with rights. The brain dead never come back.

                  I really wish I could state this in such a way as to not offend people. But if I cannot, then I will offend them.

          2. agreed – and they (entertainment and media) can’t understand why people stop paying attention?

    2. Yep. Show me someone who trusts the police, and I’ll show you someone who has neither been the victim of a crime nor been accused of a crime.

  18. That’s all very interesting, but I’d really like to hear Dunphy’s take on the subject. 😐

    1. liar

      smooches

      1. That helped, thanks.

  19. Maybe it is true that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

    1. Maybe it is true that a wise Latina woman with the richness of her experiences would more often than not sometimes reach a better conclusion than a white male who hasn’t lived that life.

      1. and sometimes a blind squirrel finds an acorn but you don’t hire the blind squirrel as you official acorn finder in chief do you?

      2. Precisely how is she wise and what fucking difference does being Latina make? Given what shitholes they come from I would sy that most. Latin people are rather unwise.

        What makes her so fucking special?

  20. when it comes to determining the amount of time that’s “reasonably required” to conduct traffic stops.

    Does anyone else get the inclination that “reasonable” may be a relative/subjective term?

    But then the Fourth Amendment becomes a useless piece of paper.

    By my observation, it already is given that one can be searched by dog without a warrant.

    1. Never thought it OK for a search by something I can’t question as to: “what, exactly, did you smell”, is allowed as evidence, or justification for a full search.
      Are any statistics kept on a drug-sniffing dog alerting, and the subsequent search turning up nothing?

  21. We can’t keep bending the Fourth Amendment to the resources of law enforcement.

    Even a broken clock….

  22. Justice Sotomayor is the only Justice that has any real-world experience working for an agency that actively fought and litigated against police abuses (12 years with the Puerto Rican Legal Defense and Education Fund in NYC). This experience without a doubt influences her 4th Amendment jurisprudence. Hopefully, she doesn’t forget these roots the longer she stays on the Court.

    1. so she wouldn’t help me because I am a white heterosexual male?

      Sounds Very discriminatory/racist to me!

      Perhaps I can sue for being excluded based up on her refusal to serve me. How is this any different than not serving blacks at a lunch counter in the 1960s or not making wedding cakes for gay couples?

      Love those liberal hypocrites. So why should this racist discriminator be allowed to be on the SCOTUS? A white lawyer who did the same thing to “minorities” would have been tarred and feathered in the press and forced into retirement in shame.
      Got to love this backward upside down country we live in

      1. WTF does my original comment have to do with anything you wrote?

  23. just before I looked at the bank draft ov $6382 , I have faith …that…my neighbours mother had been realy earning money in their spare time from their computer. . there mums best friend had bean doing this 4 less than sixteen months and just now paid the dept on there house and bought themselves a Lancia . see this website……….

    http://www.Jobsyelp.com

  24. $89 an hour! Seriously I don’t know why more people haven’t tried this, I work two shifts, 2 hours in the day and 2 in the evening?And i get surly a chek of $1260……0 whats awesome is Im working from home so I get more time with my kids.
    Here is what i did
    ?????? http://www.paygazette.com

  25. Sotomayor: “…we can’t keep bending the Fourth Amendment to the resources of law enforcement.”

    But Sotomayor supports: “we”[SCOTUS] can keep supporting the Democrats in trying to infringe the Second Amendment into a non-right!

  26. My coworker was pulled over last night. The officer told her he made a mistake and thought her 2015 registration sticker was the color of the 2014 sticker. Mind you, 15 is also on the sticker. She got an illegal sobriety stop.

    1. Those shitbags do that all the time. Another reason I always vote against fubding for them.

  27. “…we can’t keep bending the Fourth Amendment to the resources of law enforcement.”
    Except, of course when it comes to “sobriety checkpoints” where everyone’s free passage is interfered with, just for being out for a drive.

  28. “But then the [Constitution is just] a useless piece of paper.”

    There. Fixed it.

    I find myself agreeing with Sonia Sotomayor. Gabriel MUST be warming up his lip for his solo.

  29. i am really beginning to admire the “wise latina’s” cojones on the 4th amendment.

    she’s been a pleasant surprise.

    if only i could say the same for that horrid disappointment roberts.

  30. my neighbor’s ex-wife makes $62 every hour on the computer . She has been out of work for five months but last month her paycheck was $18411 just working on the computer for a few hours. try this site……..
    ?????? http://www.cashbuzz80.com

  31. my roomate’s aunt makes $82 /hour on the laptop . She has been fired from work for eight months but last month her income was $21833 just working on the laptop for a few hours. view it

  32. $89 an hour! Seriously I don’t know why more people haven’t tried this, I work two shifts, 2 hours in the day and 2 in the evening?And i get surly a chek of $1260……0 whats awesome is Im working from home so I get more time with my kids.
    Here is what i did
    ?????? http://www.paygazette.com

  33. Have to agree with her on this.

  34. We need more justices like Sotomayor and fewer like the others.

Please to post comments

Comments are closed.