Barstool Fodder

Here’s some ammunition for your next barstool duel regarding the merits of an 18th Century Constitution in the 21st Century.  The lede:

From the city of Exeter, great moments in community outreach: “police were under fire today after admitting they had been sneaking into people’s homes through open doors and windows and gathering up their valuables into ’swag’ bags.” The idea was to prod careless owners into improving their security efforts, but “not all residents were happy and a criminal lawyer suggested that the police may have been guilty of trespass.” [The Guardian] Earlier, and nearly as outrageous: Sept. 2 (cops in London borough “remove valuables from unlocked cars to teach the owners about safety”).

So, in short, British cops apparently have no qualms with entering British subjects’ home and seizing their property. According to a British criminal lawyer a trespassing charge is the only legal remedy. Perhaps you’re thinking it sounds like burglary, not mere trespassing. Likely not. Common law burglary requires larcenious intent, and it appears the british cops intended not to permanently deprive the British subjects in question of their property (rather, just to teach them a lesson). Plus, burglary has to occur in the nighttime.

By contrast, the 4th Amendment reads:

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

In America the British cops’ actions would be a slam dunk unlawful search and seizure under the 4th Amendment, which guarantees American citizens the natural right to be free of such in our homes. Now, I’m often a critic of the way federal courts have interpreted the 4th Amendment, or rather how the Courts have contrived numerous exceptions to its protections. By the way, what’s most galling about judicial exceptions to the 4th Amendment is that courts created many of them in response to uphold police actions concerning the spectacularly failed war on drugs. But I digress.

A barstool duel on the matter with a fairly illiberal liberal individual might go something like this.  He/she might ask why you take umbrage at the idea that a government actor can enter your home unannounced to teach you a valuable lesson. That will segue into a much, much broader discussion of the State’s role in society. And he/she probably needs that discussion much more than you need to expound on the merits of the 4th Amendment. First, assert that individual liberty includes the right not to have nanny-state government actors fuck with you in your home. That’s pretty reasonable, f-word aside, and very few people will disagree with you. Even if he/she broadly agrees with you, he/she will counter that there’s a public interest in teaching people to lock their homes, as doing so presumably will deter thefts. Now, assert that few, if any, public interests trumps the individual’s privacy interest or his/her interest in being secure in his/her home/castle. As a matter of principal, it is the individual, not the State, who is inherently responsible for his/her home, effects, and person. For instance, not even the State’s strong interest in cheaply and efficiently housing soldiers trumps the individual’s right not to be forced to house soldiers in his home. By contrast, if the State, not the individual, is inherently responsible for the individual then there is no reason why police can’t visit your bathroom unannounced while you’re defecating to ensure you’re not using too much toilet paper, or brushing your teeth, or whatever. He’ll/she’ll say that’s absurd. Ask her to spot the principal difference between cops teaching you an in-home lesson about theft and an in-home lesson about ass-wiping. The only difference is that one personally offends him/her, and one doesn’t. Granted, this is kindergarten level dueling. But it is your charge to utterly dispel the ugly notion, everywhere you find it, that the state is inherently noble and ultimately responsible for the individual.

Duels