PDA

View Full Version : Is Tasering someone to obtain evidence unconstitutional?


BobB35
06-06-2009, 9:24 AM
Would like to get the opinion of LEO's here on the constitutatioality of doing this? Obviously the judge thinks it's OK....does this lead somewhere?

NIAGARA COURTS RULING: Taser use to obtain DNA not unconstitutional
By Rick Pfeiffer
rick.pfeiffer@niagara-gazette.com

A decision by Falls Police to use a Taser to obtain a DNA sample from a suspect in an armed robbery, shooting and kidnapping is not unconstitutional.

Niagara County Court Judge Sara Sheldon Sperrazza reached that conclusion in a 16 page decision handed down Wednesday that refused to dismiss an indictment against Ryan Smith and denied his request to have DNA evidence that links him to two separate criminal cases thrown out.

The ruling left Smith’s attorney, Patrick Balkin, stunned and requesting additional time to prepare for a trial that had been scheduled to begin later this month.

“Your honor, I was not expecting this ruling,” Balkin said. “I have not begun to have the DNA evidence analyzed and will need time to do that.”

Sperrazza set a new trial date of Aug. 10.

“I was not surprised. I was confident the judge would rule in our favor,” Assistant District Attorney Doreen Hoffmann said. “Clearly, we are satisfied that the judge heard all the evidence at the hearing and made the correct decision.”

Balkin sharply questioned the ruling.

“She’s the first judge in western civilization to say you can use a Taser to enforce a court order,” Balkin said.

Smith, standing next to his attorney as the decision was announced, showed no reaction. He faces charges of first-degree robbery, burglary, second-degree kidnapping and other crimes stemming from a pair of incidents in 2006.

In July 2006, Smith is accused of being one of four suspects who staged a home invasion in the Falls that involved tying up two children with duct tape and forcing their mother to go to another home where a man was shot in a robbery attempt.

Then on Christmas Eve 2006, Smith is accused of staging the armed hold-up of a gas station and convenience store on Hyde Park Boulevard and Ontario Avenue.

Detectives recovered DNA evidence from a pop can at the home invasion scene and from a glove left behind at the robbery scene and a search of the state’s DNA data base matched that evidence to Smith. Prosecutors asked Sperrazza for an order to get a DNA sample from Smith in August 2008 and he voluntarily gave that sample to police.

In September 2008, prosecutors asked for another DNA sample because the first one had been sent to the wrong laboratory and could not be used. Sperrazza signed the second request and Falls Police went looking for Smith.

When they found Smith and took him to police headquarters, he refused to give another sample, telling the officers that he would have to “be tased” to give one. After detectives and officers tried to get Smith to comply with the court order, and he refused, they drive stunned him with a Taser and then took the DNA sample.

Balkin had argued that the use of the Taser to get Smith to give up the DNA sample violated his constitutional right against an unreasonable search and seizure. Sperrazza ruled that the police action was reasonable.

Two Shots
06-06-2009, 9:57 AM
When they found Smith and took him to police headquarters, he refused to give another sample, telling the officers that he would have to “be tased” to give one. After detectives and officers tried to get Smith to comply with the court order, and he refused, they drive stunned him with a Taser and then took the DNA sample.
[/B][/I]

Just think if he would have said "Over my dead body"He refused the court order and it also depends if he resisted physically or just verbally. I wonder what the full details would be had they had a camera in the room.

Jwood562
06-06-2009, 10:01 AM
"When they found Smith and took him to police headquarters, he refused to give another sample, telling the officers that he would have to “be tased” to give one. After detectives and officers tried to get Smith to comply with the court order, and he refused, they drive stunned him with a Taser and then took the DNA sample.

Balkin had argued that the use of the Taser to get Smith to give up the DNA sample violated his constitutional right against an unreasonable search and seizure. Sperrazza ruled that the police action was reasonable."

The last two sentances would be enough for me. First it sounds like he could have been resisting and since there was a court order to get it I doubt he had any constitutional rights to resist the search or seizure. It is like drawing blood from a person who is DUI and crashed that injured/killed someone. he cannot refuse a blood test and it will be taken force or no force

nobody33
06-06-2009, 10:04 AM
We use pain compliance to force people into blood draw chairs for DUI's and narcotics under the influences charges when they try and fight. So I don't see why not. That probably hurts more.

My department policy would not allow it though. But back east and in the mid west the uses on tazer are much much more lax. Simple resistance = tazing.

All that matters is what the judge in the case says. The public defender her sounds incompetent.

tyrist
06-06-2009, 10:18 AM
It could be depending on department policy and to what level the resistance was. I am going to believe it was border line combative otherwise the Officers would have been able to use joint locks to hold him still.

BigDogatPlay
06-06-2009, 10:21 AM
I'm waiting for the first case of a Taser deployment to facilitate a forced blood draw... that ought to be interesting.

BobB35
06-06-2009, 10:55 AM
Thanks for the replies. The gist I am getting is that LEOs seem to think this is a reasonable activity? Do any of the LEOs think that is a problem?
Do any of you think that such a ruling lessens the freedoms of the US in any way? Do you think that this would be the first step down the slippery slope?

nobody33
06-06-2009, 1:18 PM
Thanks for the replies. The gist I am getting is that LEOs seem to think this is a reasonable activity? Do any of the LEOs think that is a problem?
Do any of you think that such a ruling lessens the freedoms of the US in any way? Do you think that this would be the first step down the slippery slope?

Go be drive stunned (that's what happened in this case). We all had to do it here. It's like being pinched hard without a bruise. We are talking about evidence in a violent felony here. They had a lawful court order. He should have complied. I think it's reasonable. It doesn't lessen any freedom, because he didn't have the freedom to refuse in the first place. The courts have constantly upheld we can force evidence samples. If that wasn't the case, everyone could drive DUI and kill each other.

I don't think it's something I would do, because I don't think it is the most effective thing to do in the cases I tend to deal with. Physical force works just as good, it just leave bruises sometimes... which even a tazer doesn't do.

Unit74
06-06-2009, 2:45 PM
Would it have been more intrusive to hold him down and stick a needle in his arm? Not to mention, he "gave them permission" by saying he would only comply with the order if he was tased first.

Seems reasonable as he asked for it.

bluestaterebel
06-06-2009, 2:54 PM
Thanks for the replies. The gist I am getting is that LEOs seem to think this is a reasonable activity? Do any of the LEOs think that is a problem?
Do any of you think that such a ruling lessens the freedoms of the US in any way? Do you think that this would be the first step down the slippery slope?

Slippery slope? yeah i guess. think about it as the criminals are on the slippery slope and the good people are on the bottom. law enforcement is constantly trying to keep the criminals from slipping towards the good people in a slippery slope that the criminals themselves started.

Or how about just give up your DNA like the court ordered, maybe cause he knows thats a slippery slope leading to his conviction.

bohoki
06-06-2009, 5:33 PM
if they have a court order to obtain the sample they can use any method they like

i don't like it but its the way it goes

as to drunk driving it is an implied consent when getting a driverslicence that you are to give blood breath or urine under suspicion or your licence will be revoked

does that mean they can forcefully take your "sample" or can you just refuse and take the bus?

SVT-40
06-06-2009, 7:53 PM
There is really not enough information.

"When they found Smith and took him to police headquarters, he refused to give another sample, telling the officers that he would have to “be tased” to give one. After detectives and officers tried to get Smith to comply with the court order, and he refused, they drive stunned him with a Taser and then took the DNA sample.


Basically it sounds like since there was a court order for the test Smith had to comply, but refused. What is not said is what the officers did before they tased Smith. I'm sure they tried the standard escalation of force. First verbal, then control holds ect. when those failed the taser would be justified.

Another scenario would be, Smith was told the submit to the test. When he refused and said "tase me" he could have taken a fighting stance. Using a taser in that situation would be 100 % justified without even trying other methods to subdue him.


Without reading the ENTIRE report it's impossible to draw a accurate conclusion. To much is left out of this story, which was written by the suspects attorney.

I'm sure the attorney did not omit anything unfavorable about his clients behavior.......Yeah right!!!!!


bohoki, regarding forced withdrawal of blood samples for DUI cases. It's only done in felony cases usually when there is death or serious injuries to others involved.

Not your standard misdemeanor cases. Your refusal will only lead to a license suspension and usually a conviction.

Remember if there is no sample your atty can only argue you were not under the influence (even if you were). LEO's can give an expert opinion as to your condition.

Fire in the Hole
06-06-2009, 8:00 PM
I particularilly like this one:

The ruling left Smith’s attorney, Patrick Balkin, stunned and requesting additional time to prepare for a trial that had been scheduled to begin later this month.

“Your honor, I was not expecting this ruling,” Balkin said. “I have not begun to have the DNA evidence analyzed and will need time to do that.”

Apparently Mr. Balkin was not in the Boy Scouts or he would have learned to "Always Be Prepared."


Note to Mr. Smith, I've found it's usually not wise to dare the cops not to do something. They love to call you bluff.

scr83jp
06-06-2009, 8:18 PM
That's a great way to obtain dna sure beats a take down where you're always at risk of getting injured from fighting the perp!

tyrist
06-06-2009, 9:02 PM
if they have a court order to obtain the sample they can use any method they like

i don't like it but its the way it goes

as to drunk driving it is an implied consent when getting a driverslicence that you are to give blood breath or urine under suspicion or your licence will be revoked

does that mean they can forcefully take your "sample" or can you just refuse and take the bus?

No, they cannot use force to obtain evidence for misdemeanor DUI but your guilt will be assumed by the court.

Fire in the Hole
06-06-2009, 9:32 PM
No, they cannot use force to obtain evidence for misdemeanor DUI but your guilt will be assumed by the court.

Actually they can, and do it every day. Santa Barbara was the first county to participate in 1985. At the present time, 51 counties participate in the misdemeanor forced blood draw program, formerly restricted to felony DUI cases, where the suspect is taken to the hospital, and if necessary physically restrained, by hands, sitting on them, or using hard restraints to effect the "Non-Consentual Blood Drawl." As it's legally referred to.

CA DOJ:
Annotation: In cases where a DUI suspect refuses or offers resistance to providing a blood, urine, or breath sample to arresting officers, California law does allow the forcible collection of blood, with some restrictions.
Abstract: California Vehicle Code 13353, the Implied Consent Law, mandates an automatic driver's license suspension for persons who refuse to submit to alcohol consumption tests following an arrest for suspected DUI. The forcible collection of blood does not violate an offender's right against self-incrimination, but it does require the police to furnish the prosecutor with sufficient evidence in their report to justify a non-consensual taking of blood. Blood, when taken, must be extracted in a reasonable manner by a qualified person adhering to accepted medical practice.
Main Term(s): Driving under the influence ; Blood and body fluid analysis

Fire in the Hole
06-06-2009, 9:33 PM
There is really not enough information.

"When they found Smith and took him to police headquarters, he refused to give another sample, telling the officers that he would have to “be tased” to give one. After detectives and officers tried to get Smith to comply with the court order, and he refused, they drive stunned him with a Taser and then took the DNA sample.


Basically it sounds like since there was a court order for the test Smith had to comply, but refused. What is not said is what the officers did before they tased Smith. I'm sure they tried the standard escalation of force. First verbal, then control holds ect. when those failed the taser would be justified.

Another scenario would be, Smith was told the submit to the test. When he refused and said "tase me" he could have taken a fighting stance. Using a taser in that situation would be 100 % justified without even trying other methods to subdue him.


Without reading the ENTIRE report it's impossible to draw a accurate conclusion. To much is left out of this story, which was written by the suspects attorney.

I'm sure the attorney did not omit anything unfavorable about his clients behavior.......Yeah right!!!!!


bohoki, regarding forced withdrawal of blood samples for DUI cases. It's only done in felony cases usually when there is death or serious injuries to others involved.

Not your standard misdemeanor cases. Your refusal will only lead to a license suspension and usually a conviction.

Remember if there is no sample your atty can only argue you were not under the influence (even if you were). LEO's can give an expert opinion as to your condition.

Oops, your slip is showing. See above. This has been standard common practice for 24 years now, Gawd.

nobody33
06-06-2009, 10:15 PM
No, they cannot use force to obtain evidence for misdemeanor DUI but your guilt will be assumed by the court.

Not in the two counties I have worked... I force misdemeanor blood draws weekly... they get the year suspension plus the conviction... can't get the conviction without it. I do it for 11550 HS too. It's done at the station by a nurse.

tyrist
06-06-2009, 10:57 PM
Not in the two counties I have worked... I force misdemeanor blood draws weekly... they get the year suspension plus the conviction... can't get the conviction without it. I do it for 11550 HS too. It's done at the station by a nurse.

Guess I should have said I haven't done it.

Libertarian71
06-07-2009, 1:19 AM
I force misdemeanor blood draws weekly.

This shows you what a frightening country this has become.

bluestaterebel
06-07-2009, 1:36 AM
This shows you what a frightening country this has become.

Really? We used to have our children swatted with wooden paddles decades ago. We used to execute death penalty inmates by firing squad or hanging. and now we are becoming a frightening country because we force someone to provide a blood sample?

Libertarian71
06-07-2009, 1:54 AM
now we are becoming a frightening country because we force someone to provide a blood sample?

Yes. Forcing a blood sample for a misdemeanor? I question the constitutionality of the practice, and of the law itself, on several levels. The problem is with the courts that roll over and accept such a practice. Regarding TASERING somebody to enforce a court order, that is sadistic. Period. I hope this unsound ruling is challenged on appeal.

Fire in the Hole
06-07-2009, 8:13 AM
Yes. Forcing a blood sample for a misdemeanor? I question the constitutionality of the practice, and of the law itself, on several levels. The problem is with the courts that roll over and accept such a practice. Regarding TASERING somebody to enforce a court order, that is sadistic. Period. I hope this unsound ruling is challenged on appeal.

Hi. I too am a Libertarian. I understand your concerns. I share many of them. As I previously stated "Non-Consentual Blood Draws" or "Forced Blood Draws" as they are known in the vernacular, have been in use in CA for 24 years now. With all the media coverage it got when it started out, blogs, and word of mouth, I was sure that it would be common knowledge by now. But I guess not. When I first entered LE, Non-Consentual Blood Draws" were reserved only for felonys. This was very frustrating for LE, who are charged with the legal responsibility to collect and obtain evidence of a crime. When you really stop to think about it; if it was non-invasive for felonies, why would it be for misdemeanors? In 1985 the DA's and courts finally came to this realization, and adopted this new law. When a person applies for, and receives a driver's license, that person enters into a binding contract with the DMV to submit to a test of their blood or breath when LE suspects that person is DUI. That is why if a person refuses a blood test, they have violated the civil contract with DMV, and their license gets suspended automatically for one year. And then LE takes that person's blood sample anyway. So it's a double whammy to refuse.

nobody33
06-07-2009, 8:36 AM
This shows you what a frightening country this has become.

I know! There's a lot of AH drunks and crack heads out there for me to arrest, who are jerks after I arrest them.

Maybe people shouldn't do crack or drive drunk. You should know that to force blood means I have enough probable cause to have already arrested someone for DUI based on a ton of evidence usually. And then they have to refuse to give a breath sample and a voluntary blood sample.

deleted by PC police
06-07-2009, 8:57 AM
I'm not LEO but I have to say, I have no problems with this tazing. He disobeyed the court order, they had to get it one way or another.

Fire in the Hole
06-07-2009, 9:01 AM
I'm not LEO but I have to say, I have no problems with this tazing. He disobeyed the court order, they had to get it one way or another.

+1, and let us not forget, Mr. Smith invited the tazing himnself. In fact he made it a condition. Not the LEO's.

JohnnyG
06-07-2009, 10:33 AM
Hi. I too am a Libertarian. I understand your concerns. I share many of them. As I previously stated "Non-Consentual Blood Draws" or "Forced Blood Draws" as they are known in the vernacular, have been in use in CA for 24 years now. With all the media coverage it got when it started out, blogs, and word of mouth, I was sure that it would be common knowledge by now. But I guess not. When I first entered LE, Non-Consentual Blood Draws" were reserved only for felonys. This was very frustrating for LE, who are charged with the legal responsibility to collect and obtain evidence of a crime. When you really stop to think about it; if it was non-invasive for felonies, why would it be for misdemeanors? In 1985 the DA's and courts finally came to this realization, and adopted this new law. When a person applies for, and receives a driver's license, that person enters into a binding contract with the DMV to submit to a test of their blood or breath when LE suspects that person is DUI. That is why if a person refuses a blood test, they have violated the civil contract with DMV, and their license gets suspended automatically for one year. And then LE takes that person's blood sample anyway. So it's a double whammy to refuse.


This is spot on. People tend to forget that driving is a privelege and a civil agreement to do certain things, not to do others. Don't drive or use a driver's license if you don't like the agreement, but remember that everyone who has a license signed the agreement and (should have) read the contract.

John

SVT-40
06-07-2009, 11:45 AM
Oops, your slip is showing. See above. This has been standard common practice for 24 years now, Gawd.

Not in L.A. County. Forced blood draws are for Felony cases only.

bluestaterebel
06-07-2009, 12:41 PM
Not in L.A. County. Forced blood draws are for Felony cases only.

Yeah, i though it was for felonies only, but others here say no. maybe la county doesnt do it

i wouldnt wast my time for a misdemeanor.

paladin4415
06-07-2009, 1:05 PM
Not in L.A. County. Forced blood draws are for Felony cases only.

How do you prosecute misd. DUI if the defendant refuses to give a sample?

Ron-Solo
06-07-2009, 1:17 PM
This shows you what a frightening country this has become.

You're right, parts of this country are frightening. There are people out there that will slice you up for the change in your pocket. Like Stanley "Tookie" Williams, who mocked his victim as he lay dying and struggling for his final breaths. Law enforcement and our legal system is what stands between brutal thugs and the average person.

This guy had plenty of chances to comply. He chose the path he followed, which was obviously a continuation of a series of poor choices.

And, if he wasn't guilty, we would be doing him a favor and proving his innocence. :43:

Seriously, I think it should be reviewed on a case by case basis. There is a potential for abuse if not done carefully.

I supervised one case where a judge ordered force to get a fingerprint. We used a restraint chair which we had to use control holds to get the guy into. He was refusing to move, but was not "being assaultive" which did not allow us to taze him according to policy. We got him secured in the restraint chair, and had to pry his hands open and get the print. Wasn't easy, but no one got hurt, and he's now doing 3 LWOPs based on the print, which was used to prove his priors, allowing for the LWOPs to be imposed.

We videotaped everything to refute allegations of misconduct, partially because the average individual can't comprehend having to use force to subdue a combative or resistant individual.

Libertarian71
06-07-2009, 1:28 PM
People tend to forget that driving is a privilege and a civil agreement to do certain things, not to do others. Don't drive or use a driver's license if you don't like the agreement, but remember that everyone who has a license signed the agreement and (should have) read the contract. John

I do not agree with you. (I am a lawyer, not an LEO, but I am licensed to practice in California and Illinois, and part of my oath is to protect the Constitution). Traveling is a federal constitutional right, not a privilege. See U.S. v Guest, 383 U.S. 745 (1966). Of course, as with any constitutional right, it is subject to reasonable regulation. (E.g., even the right of free speech under the First Amendment is subject to slander and libel laws, and reasonable time, place, and manner restrictions). But to say that traveling is a "privilege" granted to us by the government is simply false. Under the Lockean theory upon which this nation was founded, our rights pre-date the existence of government, and the only legitimate purpose of government is to protect our rights. So you err when you claim that our right to travel is bestowed to us by the government.

I also disagree with your premise that obtaining a license is tantamount to entering a "contract." There is no contract, at least not one with any meaningful mutual consent. When a person violates a traffic law, the government does not bring a breach of contract suit. The government rather brings a quasi-criminal action, attempting to deprive a person of their liberty and/or property. Similarly, when LEO violate the civil rights of motorist (e.g., by planting false evidence, beating, etc.), the motorist does not bring a breach of contract claim in court against the government and its LEO agents. The motorist rather brings a tort claim or a federal constitutional tort claim.

This is not to say that there should be no rules governing traffic. In the absence of government ownership of roads, a private operator of roads would probably prescribe rules and regulations regulations similar to what exist now in terms of speed limits, lane changing, driving under the influence, etc. The only difference would be that a private operator of roads would have an economic incentive not to violate the rights of his customers with rogue pullovers, beatings, planting incriminating evidence, etc. (The private operator would also have an economic incentive to minimize traffic congestion through toll pricing).

I would encourage anybody who is interested in the free market alternative to roads to check out this excellent work by the economist Walter Block: http://www.mises.org/store/Privatization-of-Roads-and-Highways-P581.aspx

Libertarian71
06-07-2009, 1:33 PM
You're right, parts of this country are frightening. There are people out there that will slice you up for the change in your pocket. Like Stanley "Tookie" Williams, who mocked his victim as he lay dying and struggling for his final breaths. Law enforcement and our legal system is what stands between brutal thugs and the average person.



That is a red herring. That there are violent criminals who LEO take off the streets is not a justification for tasering somebody to enforce a court order. Like I stated before, I expect this ruling to be challenged successfully on appeal.

Regarding blood draws of misdemeanants, my problem is with the law itself, not LEO administration and execution of the law. It is objectionable as a constitutional matter on several grounds. The law itself conjures up images of Big Brother 1984.

paladin4415
06-07-2009, 2:15 PM
Regarding blood draws of misdemeanants, my problem is with the law itself, not LEO administration and execution of the law. It is objectionable as a constitutional matter on several grounds. The law itself conjures up images of Big Brother 1984.

What do you believe should be done with a Misd. DUI suspect that refuses to give a blood, breath or urine sample?

Libertarian71
06-07-2009, 2:22 PM
What do you believe should be done with a Misd. DUI suspect that refuses to give a blood, breath or urine sample?

See the Fifth Amendment to the U.S. Constitution:

". . . nor shall [any person] be compelled in any criminal case to be a witness against himself."

Fire in the Hole
06-07-2009, 2:33 PM
See the Fifth Amendment to the U.S. Constitution:

". . . nor shall [any person] be compelled in any criminal case to be a witness against himself."

On its face value would this hold true for felonys and misdemeanors alike? By extension, would DNA evidence and latent fingerprints fall into the same category?

paladin4415
06-07-2009, 2:41 PM
See the Fifth Amendment to the U.S. Constitution:

". . . nor shall [any person] be compelled in any criminal case to be a witness against himself."

So, since DUI would no longer be able to be prosecuted. What should be done with people who drink to excess and then drive a motor vehicle?

Libertarian71
06-07-2009, 2:49 PM
On its face value would this hold true for felonys and misdemeanors alike? By extension, would DNA evidence and latent fingerprints fall into the same category?

First, I do not think the Fifth Amendment recognizes a distinction between felonies and misdemeanors for purposes of the Self Incrimination Clause.

Second, the Fifth Amendment bars "compelling" someone to be a witness against themself. So if a criminal suspect leaves their DNA or latent fingerprints at a crime scene, gathering that evidence and using it against them in a trial involves no compulsion.

I realize that the courts have gone the other way on this issue, but I believe it is because judges have not been faithful to the Constitution. Likewise, were the Justices of the United States Supreme Court to overturn Heller, I would view that as a judicial abdication of their oath to protect the Constitution, and I would not respect the ruling.

paladin4415
06-07-2009, 2:56 PM
[QUOTE=Libertarian71;2596767]
Second, the Fifth Amendment bars "compelling" someone to be a witness against themself. So if a criminal suspect leaves their DNA or latent fingerprints at a crime scene, gathering that evidence and using it against them in a trial involves no compulsion.

How could it be used against them in court, if law enforcement was unable to take a DNA sample or collect finger prints from the accused?

Libertarian71
06-07-2009, 3:07 PM
[QUOTE=Libertarian71;2596767]
How could it be used against them in court, if law enforcement was unable to take a DNA sample or collect finger prints from the accused?

That's a good practical question. Speaking as a constitutionalist, I would say that were we following the Constitution, as written, originally understood, and formally amended, LEO would have to find a technique that comports with the Constitution -- i.e., no compulsion. Period. And any rationalization, by the courts, of a technique involving compulsion simply runs afoul of the Constitution, in my opinion. Just as LEO cannot simply barge into a home to collect evidence, but must first obtain a proper warrant from a separate branch of government.

Fire in the Hole
06-07-2009, 3:08 PM
First, I do not think the Fifth Amendment recognizes a distinction between felonies and misdemeanors for purposes of the Self Incrimination Clause.

Second, the Fifth Amendment bars "compelling" someone to be a witness against themself. So if a criminal suspect leaves their DNA or latent fingerprints at a crime scene, gathering that evidence and using it against them in a trial involves no compulsion.

I realize that the courts have gone the other way on this issue, but I believe it is because judges have not been faithful to the Constitution. Likewise, were the Justices of the United States Supreme Court to overturn Heller, I would view that as a judicial abdication of their oath to protect the Constitution, and I would not respect the ruling.

Thank you for the clarification. I guess I've always looked at the 5th as forcing a person to confess or demanding some kind of statement verbally. I'm probably in the minority, but I believe that other physical evidence: blood, breath, urine, and DNA, are not "witnessing aginst oneself."

Fire in the Hole
06-07-2009, 3:12 PM
[QUOTE=paladin4415;2596792]

That's a good practical question. Speaking as a constitutionalist, I would say that were we following the Constitution, as written, originally understood, and formally amended, LEO would have to find a technique that comports with the Constitution -- i.e., no compulsion. Period. And any rationalization, by the courts, of a technique involving compulsion simply runs afoul of the Constitution, in my opinion. Just as LEO cannot simply barge into a home to collect evidence, but must first obtain a proper warrant from a separate branch of government.

But this "techinque" would as a practical matter have to be very secretative, and spy-like. I don't think I'd want LE following me around to get a saliva sample from my glass or silverware in a cafe. Following me to the barbershop to gather up my hair from the floor, going through my trash, etc. I'd rather they just be up front and open about it.

paladin4415
06-07-2009, 3:19 PM
[QUOTE=paladin4415;2596792]

That's a good practical question. Speaking as a constitutionalist, I would say that were we following the Constitution, as written, originally understood, and formally amended, LEO would have to find a technique that comports with the Constitution -- i.e., no compulsion. Period. And any rationalization, by the courts, of a technique involving compulsion simply runs afoul of the Constitution, in my opinion. Just as LEO cannot simply barge into a home to collect evidence, but must first obtain a proper warrant from a separate branch of government.

I am not a constitutionalist, but I don't believe the constitution has ever been followed like you suggest in the history of this country.
Please correct me if I'm misunderstanding you. A court can grant a search warrant to collect evidence from a "place" but not from a "person". Any such order against a person for any reason would be in violation of the 5th.

SVT-40
06-07-2009, 3:45 PM
How do you prosecute misd. DUI if the defendant refuses to give a sample?

Easy, based on driving, objective symptoms of alcohol intoxication and expertise. Writing ALL the suspects actions and symptoms in your report will get just about every case filed by the D.A.'s office. No test also means no evidence your WERE NOT under the influence.

Horizontal Gaze Nystagmus is a great indicator of alcohol intoxication. For info, nystagmus in an involuntary jerking motion of the eyes. It's caused by alcohol and a few drugs. It's onset is directly related to the amount of alcohol in one's blood. With practice one can become very adept at accurately determining a subjects Blood alcohol level using HGN.

I had many "refusal" type DUI cases. Only two ever went to court. Both were found guilty.

LEO's go to many training classes regarding drug and alcoholic intoxication. They also have the opportunity to observe MANY who are under the influence.

This coupled with training and experience allows LEO's to testify as an "expert" in court and give their opinion as to a subjects blood alcohol level and sobriety.

I attended many alcohol and drug recognition classes and was DART certified.
( Drug, Alcohol Recognition Trained)

Being DART trained along with other training and experience allowed me to testify as an expert in drug and alcohol related matters.

Libertarian71
06-07-2009, 3:50 PM
I am not a constitutionalist, but I don't believe the constitution has ever been followed like you suggest in the history of this country. Please correct me if I'm misunderstanding you. A court can grant a search warrant to collect evidence from a "place" but not from a "person". Any such order against a person for any reason would be in violation of the 5th.

I agree with you that the Constitution, as written, has never been "followed," by the courts for the most part. The history of this country has been marked by a slow, gradual, erosion of the liberties guaranteed to us under the Constitution.


Please correct me if I'm misunderstanding you. A court can grant a search warrant to collect evidence from a "place" but not from a "person". Any such order against a person for any reason would be in violation of the 5th.

Searches of persons and premises are governed by the Fourth Amendment, which guarantees that "[t]he 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." If we were to consider the Fourth Amendment alone, perhaps the compelled collection of blood, fingerprints and DNA evidence would be "reasonable."

But the Fifth Amendment's Self Incrimination Clause provides, "nor shall [any person] be compelled in any criminal case to be a witness against himself." It is my belief that compelled collection of blood, fingerprints, DNA samples, voice exemplars, writing samples, etc. violates this provision of the Constitution. I realize the courts have not adopted this view. To me, this is a further example of the erosion of our liberties.

SVT-40
06-07-2009, 3:51 PM
I do not agree with you. (I am a lawyer, not an LEO, but I am licensed to practice in California and Illinois, and part of my oath is to protect the Constitution). Traveling is a federal constitutional right, not a privilege. See U.S. v Guest, 383 U.S. 745 (1966). Of course, as with any constitutional right, it is subject to reasonable regulation. (E.g., even the right of free speech under the First Amendment is subject to slander and libel laws, and reasonable time, place, and manner restrictions). But to say that traveling is a "privilege" granted to us by the government is simply false. Under the Lockean theory upon which this nation was founded, our rights pre-date the existence of government, and the only legitimate purpose of government is to protect our rights. So you err when you claim that our right to travel is bestowed to us by the government.

I also disagree with your premise that obtaining a license is tantamount to entering a "contract." There is no contract, at least not one with any meaningful mutual consent. When a person violates a traffic law, the government does not bring a breach of contract suit. The government rather brings a quasi-criminal action, attempting to deprive a person of their liberty and/or property. Similarly, when LEO violate the civil rights of motorist (e.g., by planting false evidence, beating, etc.), the motorist does not bring a breach of contract claim in court against the government and its LEO agents. The motorist rather brings a tort claim or a federal constitutional tort claim.

This is not to say that there should be no rules governing traffic. In the absence of government ownership of roads, a private operator of roads would probably prescribe rules and regulations regulations similar to what exist now in terms of speed limits, lane changing, driving under the influence, etc. The only difference would be that a private operator of roads would have an economic incentive not to violate the rights of his customers with rogue pullovers, beatings, planting incriminating evidence, etc. (The private operator would also have an economic incentive to minimize traffic congestion through toll pricing).

I would encourage anybody who is interested in the free market alternative to roads to check out this excellent work by the economist Walter Block: http://www.mises.org/store/Privatization-of-Roads-and-Highways-P581.aspx

You are just plain wrong. related to driving as a "right". It's established law that there is no "right " to drive on the highways , streets and roads in the USA.

You are correct that as citizens we do have the right to travel.
I.E. walking, as a passenger in a car . Taking a bus, on a bicycle. ect.

There is not one single case decision showing DRIVING as a "right".

So stop spreading your opinion as a fact.

SVT-40
06-07-2009, 3:56 PM
[QUOTE=Libertarian71;2596823]

I am not a constitutionalist, but I don't believe the constitution has ever been followed like you suggest in the history of this country.
Please correct me if I'm misunderstanding you. A court can grant a search warrant to collect evidence from a "place" but not from a "person". Any such order against a person for any reason would be in violation of the 5th.

Sure they do all the time. Judges issue search warrants commanding suspects give hair (all types) or any other type evidence needed for prosecution such as photos of body parts.

Happens all the time especially in sex crimes.

Fire in the Hole
06-07-2009, 4:10 PM
[QUOTE=paladin4415;2596859]

Sure they do all the time. Judges issue search warrants commanding suspects give hair (all types) or any other type evidence needed for prosecution such as photos of body parts.

Happens all the time especially in sex crimes.

Just ask Michael Jackson.

Libertarian71
06-07-2009, 4:18 PM
You are just plain wrong. related to driving as a "right". It's established law that there is no "right " to drive on the highways , streets and roads in the USA.

You are correct that as citizens we do have the right to travel.
I.E. walking, as a passenger in a car . Taking a bus, on a bicycle. ect.

There is not one single case decision showing DRIVING as a "right".

So stop spreading your opinion as a fact.

I am glad you concede we have a constitutional right of travel. But for you to say that such a right to travel does not extend to driving an automobile, the most common form of transportation, is purely ad hoc.

True, no court has addressed this question. But it is implied by the Constitution. The idea that government grants us "privileges" (and that driving is one of these privileges) is simply not in keeping with our founding principles. Under your reasoning, if driving were a "privilege," then the government would have the power to simply outlaw driving by private citizens -- and force us to rely exclusively on bicycles and public transportation (under the guise of, say, reducing carbon emissions).

Do you seriously think such a blanket ban would be constitutional? And if not, wouldn't the challenge to such a ban be premised on our constitutional right to travel?

As I stated previously, the right to travel, like all constitutional rights is subject to reasonable regulations. But it is a right, not a privilege, and the distinction is crucial.

paladin4415
06-07-2009, 5:29 PM
I agree with you that the Constitution, as written, has never been "followed," by the courts for the most part. The history of this country has been marked by a slow, gradual, erosion of the liberties guaranteed to us under the Constitution.

Searches of persons and premises are governed by the Fourth Amendment, which guarantees that "[t]he 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." If we were to consider the Fourth Amendment alone, perhaps the compelled collection of blood, fingerprints and DNA evidence would be "reasonable."

But the Fifth Amendment's Self Incrimination Clause provides, "nor shall [any person] be compelled in any criminal case to be a witness against himself." It is my belief that compelled collection of blood, fingerprints, DNA samples, voice exemplars, writing samples, etc. violates this provision of the Constitution. I realize the courts have not adopted this view. To me, this is a further example of the erosion of our liberties.

The Supreme Court was designed and put in place by the founding fathers. It was and is tasked with interpreting the constitution. If they have never read it to mean what you think it means, is it possible that it's your viewpoint that is incorrect?
I agree that many court decisions seem to defy logic, and that many of our liberties have been eroded.

Libertarian71
06-07-2009, 5:43 PM
The Supreme Court was designed and put in place by the founding fathers. It was and is tasked with interpreting the constitution. If they have never read it to mean what you think it means, is it possible that it's your viewpoint that is incorrect?
I agree that many court decisions seem to defy logic, and that many of our liberties have been eroded.

Nowhere in the text of the Constitution does it state that the Supreme Court is the sole arbiter of the meaning of the Constitution. And I challenge the assertion that the Supreme Court has, or was ever intended to have, the last word on constitutional interpretation.

For instance, what if the Justices overturn Heller, a distinct possibility given the ever-shifting make-up of the Court? I just do not believe that our fundamental liberties, such as the right to keep arms for self defense, or the right to bear arms in the face of a tyrannical government, should be subject to the whims and caprice of the majority of whichever collection of nine Justices are currently sitting on the Court.

I guess this is a problem with governments in general and Ccnstitutions in particular. We simply cannot trust those charged with protecting and defending the Constitution to faithfully execute their duties.

J-cat
06-07-2009, 5:43 PM
Forcible taking of biological material does not compel one to be a witness against himself anymore than fingerprinting.

Libertarian71
06-07-2009, 5:47 PM
Forcible taking of biological material does not compel one to be a witness against himself anymore than fingerprinting.

Of course it does. Unfortunately, your position has been accepted by the courts.

paladin4415
06-07-2009, 5:56 PM
Nowhere in the text of the Constitution does it state that the Supreme Court is the sole arbiter of the meaning of the Constitution. And I challenge the assertion that the Supreme Court has, or was ever intended to have, the last word on constitutional interpretation.

Who then?

I guess this is a problem with governments in general and Ccnstitutions in particular. We simply cannot trust those charged with protecting and defending the Constitution to faithfully execute their duties.

The Constitution was not written with a language of absolutes. If I remember correctly, it did not apply to the States at all in the beginning.

J-cat
06-07-2009, 6:13 PM
Of course it does. Unfortunately, your position has been accepted by the courts.

No it does not. Do you take the same position on video surveillance?

Libertarian71
06-07-2009, 6:17 PM
No it does not. Do you take the same position on video surveillance?

Forcible taking of biological material necessarily involves "compelled self incrimination." There's obviously "compulsion." And the evidence collected will be use to "incriminate" the individual. No amount of rationalization or intellectual gymnastics by the courts can get around this inescapable fact. The words of the Constitution are plain. This is simply a matter of courts abandoning their duty under the constitution.

Re: video surveillance. No, my position is not the same. It does not involve compelled self incrimination. Of course, any surveillance, at least of private areas, requires a proper warrant, issued upon probable cause. The problem here is that the courts too often rubber stamp constitutionally defective warrant applications.

J-cat
06-07-2009, 6:23 PM
It does. It involves the use of your likeness against your will. The only difference is bodily intrusion.

J-cat
06-07-2009, 6:29 PM
Forcible taking of biological material necessarily involves "compelled self incrimination." There's obviously "compulsion." And the evidence collected will be use to "incriminate" the individual. No amount of rationalization or intellectual gymnastics by the courts can get around this inescapable fact. The words of the Constitution are plain. This is simply a matter of courts abandoning their duty under the constitution.

Re: video surveillance. No, my position is not the same. It does not involve compelled self incrimination. Of course, any surveillance, at least of private areas, requires a proper warrant, issued upon probable cause. The problem here is that the courts too often rubber stamp constitutionally defective warrant applications.

By your assertion, we should dispense with fingerprints, DNA, lineups, and even the defendant's presence in the courtroom.

Libertarian71
06-07-2009, 6:29 PM
No it does not. Do you take the same position on video surveillance?

It does. It involves the use of your likeness against your will. The only difference is bodily intrusion.

No. It does not involve any physical or mental compulsion or other intimidation to comply with a demand.

Libertarian71
06-07-2009, 6:33 PM
By your assertion, we should dispense with fingerprints, DNA, lineups, and even the defendant's presence in the courtroom.

No. The collection of such evidence left behind at a crime scene is not, under the express terms of the constitution, proscribed. What is proscribed is compelling a person to submit to giving such evidence from their own person.

Libertarian71
06-07-2009, 6:41 PM
The Constitution was not written with a language of absolutes. If I remember correctly, it did not apply to the States at all in the beginning.

It depends. The First Amendment states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The "shall make no law" sounds fairly absolute to me.

Re: whether the Bill of Rights initially applied to the States, you are indeed correct. Following the adoption of the post-Civil War amendments, the guarantees of the Bill of Rights were eventually applied against the States. The gun control crowd is now arguing that even though Heller binds the federal goverment, it does not so bind the States. That will be the next battleground in the Supreme Court, probably next Term.

J-cat
06-07-2009, 6:43 PM
How do you explain a lineup:

You get placed in a position where someone can identify you and the cops use that identification against you in court. Similarly, a witness can ID you in court, therefore your mere presence in court is non-verbal testimony.

Libertarian71
06-07-2009, 6:50 PM
How do you explain a lineup:

You get placed in a position where someone can identify you and the cops use that identification against you in court. Similarly, a witness can ID you in court, therefore your mere presence in court is non-verbal testimony.

I have no problem with lineups provided one is not compelled or required to appear for one. Same thing as being in court. If the suspect if there voluntarily, and someone positively identifies that individual, there is no compelled self incrimination.

Is it too much to ask of courts, legislatures, and the executive branch that we follow the words of the Constitution?

J-cat
06-07-2009, 6:54 PM
So the police cannot even arrest people because a witness may ID them and that ID may be used against them?

Libertarian71
06-07-2009, 8:02 PM
So the police cannot even arrest people because a witness may ID them and that ID may be used against them?

Huh?

J-cat
06-07-2009, 8:15 PM
Yes, that is where your argument leads to.

Libertarian71
06-07-2009, 8:19 PM
Yes, that is where your argument leads to.

No, I said the Fifth Amendment bars compelled self incrimination. I said, repeatedly, that there was no problem with witness identification. Eyewitness identification does not involve compulsion.

SVT-40
06-07-2009, 8:30 PM
I am glad you concede we have a constitutional right of travel. But for you to say that such a right to travel does not extend to driving an automobile, the most common form of transportation, is purely ad hoc.

True, no court has addressed this question. But it is implied by the Constitution. The idea that government grants us "privileges" (and that driving is one of these privileges) is simply not in keeping with our founding principles. Under your reasoning, if driving were a "privilege," then the government would have the power to simply outlaw driving by private citizens -- and force us to rely exclusively on bicycles and public transportation (under the guise of, say, reducing carbon emissions).

Do you seriously think such a blanket ban would be constitutional? And if not, wouldn't the challenge to such a ban be premised on our constitutional right to travel?

As I stated previously, the right to travel, like all constitutional rights is subject to reasonable regulations. But it is a right, not a privilege, and the distinction is crucial.


A right to drive is not at all "implied" by the constitution. There is a big chasm between traveling and driving.

And yes, it is constitutional to suspend or revoke ones driving PRIVILEGE, as there is no case law supporting your claim.

Any other opinion is just that, an opinion.

99% of what you say here is just that your opinion. It's not based on any case law or court decision.

Perfectly okay to have an opinion. Just remember it is just an opinion and not based on any lawful decisions or legal opinions.

J-cat
06-07-2009, 9:02 PM
No, I said the Fifth Amendment bars compelled self incrimination. I said, repeatedly, that there was no problem with witness identification. Eyewitness identification does not involve compulsion.

Are you not compelled to be a witness against yourself when you are arrested and the victim runs up to you and ID's you as the perp?

I have no problem with lineups provided one is not compelled or required to appear for one. Same thing as being in court. If the suspect if there voluntarily, and someone positively identifies that individual, there is no compelled self incrimination.

Libertarian71
06-07-2009, 9:06 PM
A right to drive is not at all "implied" by the constitution. There is a big chasm between traveling and driving.

And yes, it is constitutional to suspend or revoke ones driving PRIVILEGE, as there is no case law supporting your claim.

Any other opinion is just that, an opinion.

99% of what you say here is just that your opinion. It's not based on any case law or court decision.

Perfectly okay to have an opinion. Just remember it is just an opinion and not based on any lawful decisions or legal opinions.

Prior to the Heller decision, the Supreme Court never affirmed in any clear way, that the Second Amendment protects an individual right to keep an bear arms. So are you saying that, until June 2008, individuals had no right to keep and bear arms, merely because there was no clear court decision on point? Is that your view?

Further, given your view that driving is a privilege given to us by the grace of government, do you actually think that the government has the legitimate power to impose a blanket ban on driving by all individual citizens? Really?

Libertarian71
06-07-2009, 9:12 PM
Are you not compelled to be a witness against yourself when you are arrested and the victim runs up to you and ID's you as the perp?

No. That is not compelled self incrimination in any meaningful sense. My issue is with compelled fingerprinting, blood tests, DNA samples, writing samples, voice exemplars, etc.

SVT-40
06-07-2009, 9:18 PM
Prior to the Heller decision, the Supreme Court never affirmed in any clear way, that the Second Amendment protects an individual right to keep an bear arms. So are you saying that, until June 2008, individuals had no right to keep and bear arms, merely because there was no clear court decision on point? Is that your view?

Further, given your view that driving is a privilege given to us by the grace of government, do you actually think that the government has the legitimate power to impose a blanket ban on driving by all individual citizens? Really?

Again you take it beyond reality, and compare apples to oranges.

Stick to the subject. It's about driving nothing else.

Show me one court decision or or any case law showing you have the right to drive a motor vehicle on a highway street or road.

It's old established law that driving is a privilege NOT a right.

J-cat
06-07-2009, 9:31 PM
No. That is not compelled self incrimination in any meaningful sense. My issue is with compelled fingerprinting, blood tests, DNA samples, writing samples, voice exemplars, etc.

It is. You are being held against your will so that someone can identify you.

Similarly, forced fingerprinting involves you being held against your will so that someone can identify you.

Libertarian71
06-07-2009, 9:31 PM
Again you take it beyond reality, and compare apples to oranges.

Stick to the subject. It's about driving nothing else.

Show me one court decision or or any case law showing you have the right to drive a motor vehicle on a highway street or road.

It's old established law that driving is a privilege NOT a right.

You have a very authoritarian understanding of individual rights and governmental power, an understanding at war with the Lockean underpinnings upon which this nation was founded. To repeat, rights pre-exist government; they are not bestowed on us as "privileges" by the government. That is not my opinion. That is historical fact.

But to test whether your view has any validity whatsoever, you need to answer this question, which you keep avoiding: "Could the government, pursuant to what you view as its plenary power to permit and regulate driving, impose a blanket ban on driving by all individuals?"

Why not answer the question? Is it because you know that such a law would be invalidated by the courts, and that the BASIS for the invalidation would be that the ban runs afoul of the constitutional right to travel? Or do you really think such a blanket ban is permissible?

(Cf. Saenz v. Roe, 526 U.S. 489 (1998) (recognizing a federal constitutional right to travel).

Libertarian71
06-07-2009, 9:38 PM
It is. You are being held against your will so that someone can identify you.

Similarly, forced fingerprinting involves you being held against your will so that someone can identify you.

No, your attempt at a reductio ad absurdum does not work. In your example, you are being deprived of your liberty because you are a suspect in a crime. Obviously, this alone involves no compelled self-incrimination, because you may simply remain silent. And eyewitness identification involves no compelled relinquishment of anything on your person, such as being forced to give a blood test, urine sample, DNA sample. Again, it is compelled self-incrimination which the Fifth Amendment forbids.

J-cat
06-07-2009, 9:42 PM
In Post#63 you said you have no problem with lineups so long they are voluntary, but you don't have a problem with a field ID even though it is compelled. That is inconsistent.

Libertarian71
06-07-2009, 9:52 PM
In Post#63 you said you have no problem with lineups so long they are voluntary, but you don't have a problem with a field ID even though it is compelled. That is inconsistent.

I disagree that a field ID involves compelled self-incrimination. Re: lineups, I am not sure. Lineups themselves have various and sundry constitutional requirements. Again, the gravamen of my focus is compelled blood tests, urine samples, DNA samples, etc. In those instances, clearly you are being compelled to incriminate yourself. (And to clarify: the mere collection, at a crime scene, of fingerprint evidence, blood evidence, DNA, etc., does not raise any concerns).

J-cat
06-07-2009, 10:07 PM
How is a lineup any different from a field ID in terms of evidence gathering? In either case, you are in custody and evidence from either event is being used to incriminate you. You, by your presence, are furnishing that evidence. Your presence is compelled.

SVT-40
06-07-2009, 10:37 PM
You have a very authoritarian understanding of individual rights and governmental power, an understanding at war with the Lockean underpinnings upon which this nation was founded. To repeat, rights pre-exist government; they are not bestowed on us as "privileges" by the government. That is not my opinion. That is historical fact.

But to test whether your view has any validity whatsoever, you need to answer this question, which you keep avoiding: "Could the government, pursuant to what you view as its plenary power to permit and regulate driving, impose a blanket ban on driving by all individuals?"

Why not answer the question? Is it because you know that such a law would be invalidated by the courts, and that the BASIS for the invalidation would be that the ban runs afoul of the constitutional right to travel? Or do you really think such a blanket ban is permissible?

(Cf. Saenz v. Roe, 526 U.S. 489 (1998) (recognizing a federal constitutional right to travel).

My final and last request. Stick to DRIVING I'm not talking about traveling. And instead of pie in the sky theoretical issues such as, can the Govt ban all driving?

Get down to earth.

Driving is a privilege not a right. Your individual driving privilege can legally be suspended or revoked.

I'll bet even you have a drivers license. If you believe so deeply in your OPINION tear it up and never get another one. Make a test case out of yourself.

Libertarian71
06-08-2009, 1:27 AM
Driving is a privilege not a right.

No. Driving is a right. Like all rights, it is subject to reasonable regulation. The reason we know it is a right is because, if the government were to ban driving, the ban would be overturned on the grounds that it an an undue infringement of the right to travel.

"Even the legislature has no power to deny to a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with the public interest and convenience." Chicago Motor Coach Co. v. Chicago, 337 Ill. 200, 206-07.

"The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety. It includes the right in so doing to use the ordinary and usual conveyances of the day; and under the existing modes of travel includes the right to . . . operate an automobile thereon, for the usual and ordinary purposes of life and business. It is not a mere privilege, like the privilege of moving a house in the street, operating a business stand in the street, or transporting persons or property for hire along the street, which a city may permit or prohibit at will." Thompson v. Smith, Chief of Police, 155 Va. 367, 377.

"Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal Liberty, and the right, ordinarily, of free transit from or through the territory of any State is a right secured by the l4th Amendment and by other provisions of the Constitution." Schactman v. Dulles, 96 App D.C. 287. 293.

Ron-Solo
06-08-2009, 8:57 AM
It is. You are being held against your will so that someone can identify you.

Similarly, forced fingerprinting involves you being held against your will so that someone can identify you.

More bad info. Odds are, that eventually you will get something right, but I could be wrong on this. :43:

SVT-40
06-08-2009, 12:24 PM
No. Driving is a right. Like all rights, it is subject to reasonable regulation. The reason we know it is a right is because, if the government were to ban driving, the ban would be overturned on the grounds that it an an undue infringement of the right to travel.

"Even the legislature has no power to deny to a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with the public interest and convenience." Chicago Motor Coach Co. v. Chicago, 337 Ill. 200, 206-07.

"The right of a citizen to travel upon the public highways and to transport his property thereon in the ordinary course of life and business is a common right which he has under his right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety. It includes the right in so doing to use the ordinary and usual conveyances of the day; and under the existing modes of travel includes the right to . . . operate an automobile thereon, for the usual and ordinary purposes of life and business. It is not a mere privilege, like the privilege of moving a house in the street, operating a business stand in the street, or transporting persons or property for hire along the street, which a city may permit or prohibit at will." Thompson v. Smith, Chief of Police, 155 Va. 367, 377.

"Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal Liberty, and the right, ordinarily, of free transit from or through the territory of any State is a right secured by the l4th Amendment and by other provisions of the Constitution." Schactman v. Dulles, 96 App D.C. 287. 293.

Gee sounds like current Calif settled law is wrong according to you.

You should challenge the current Calif. law which states driving is a privilege then shouldnt you.......

You are aware it is the current Calif law that driving is a privilege?

Good luck.

scr83jp
06-08-2009, 1:05 PM
This shows you what a frightening country this has become. OK Expert how would you do it?????

Libertarian71
06-08-2009, 1:24 PM
You should challenge the current Calif. law which states driving is a privilege then shouldnt you.......

You are aware it is the current Calif law that driving is a privilege?
Good luck.

I've said repeatedly that rights are subject to reasonable regulation. This is also true of the right to free speech, the right to keep and bear arms, etc.

Your view of "rights" seems to be that they are bestowed on us by the grace of the government. That view runs afoul of our founding principles. Rights pre-date the existence of government, and the only legitimate purpose of government is to secure those rights.

Libertarian71
06-08-2009, 1:25 PM
OK Expert how would you do it?????

I never said I was an expert, just a constitutionalist.

SVT-40
06-08-2009, 5:33 PM
I've said repeatedly that rights are subject to reasonable regulation. This is also true of the right to free speech, the right to keep and bear arms, etc.

Your view of "rights" seems to be that they are bestowed on us by the grace of the government. That view runs afoul of our founding principles. Rights pre-date the existence of government, and the only legitimate purpose of government is to secure those rights.

You know nothing about my "views" on our rights. All I've said here is driving is not one of them. My opinion is backed up by settled law, nothing else.

Since you agree that our rights are subject to "reasonable regulation". You agree with me that here in California under current law there is no "right to drive". You have a previlege, not a right.

nobody33
06-08-2009, 6:39 PM
No. Driving is a right.

Millions of illegal immigrants who can't get driver's licenses might disagree with you. So do a lot of DUI attorneys that make a good living on getting people's driving privileges back.

You're views are interesting... they are just a little unrealistic in maintaining a civilized society. And they are certainly not the law of the land as we practice now on the day to day.

SVT-40
06-08-2009, 7:10 PM
Libertarian71, Don't get me wrong. Your views are certainly noble in their ideals. But they are mostly just your ideals.

LEO's deal in current law as written. They have to. Because if they practiced making up the law as they went along or they "thought it should be" there would be chaos.

I too do not always agree with laws, but when I was a LEO I took an oath to enforce and protect both the constitution as well as the laws of our nation and state.

That's just the way it is. LEO's must be flexible enough the exercise their discretion wisely and keep up with changes in laws.

That's one of the many thing that constantly challenges each and every LEO each day of his or her career.

Balance is everything!!!

Libertarian71
06-08-2009, 7:19 PM
You know nothing about my "views" on our rights. All I've said here is driving is not one of them. My opinion is backed up by settled law, nothing else.

Since you agree that our rights are subject to "reasonable regulation". You agree with me that here in California under current law there is no "right to drive". You have a previlege, not a right.

Where I differ with you is that I do not think the government our courts grant us rights. Courts may declare that we have certain rights, but those rights exist independent of government.

For instance, it was not until June 2008 that a slim majority of the Supreme Court of the United States ruled in Heller v. DC that the Second Amendment protects an individual right to keep firearms for self defense. But would you really say that, until June 2008, we did not truly have a right to keep and bear arms? I know, for one thing, my right to keep and bear arms is not contingent upon some court ruling. It's a natural right of mine, that pre-exists government. And to the extent that the government would seek to unduly infringe that right, we have a natural right to resist such tyranny. (See Declaration of Independence).

Yes, it is true that some courts give lip service to the notion that "driving is a privilege," (just as some courts actually believe that to keep and bear arms is not a right, but a privilege). One way lawyers (don't hold it against me) and legal thinkers test the validity of a legal contention, such as your contention that "driving is a privilege not a right," is to see how far we could extend this contention. If driving is truly a privilege, subject to the whims and caprice of government, then the government could extinguish the privilege altogether -- say a blanket ban of driving by private individuals (so as to reduce carbon emissions). There would immediately be a constitutional challenge to the law, and the challenge would be premised on the notion that the ban unduly infringes on the constitutional right to travel. It is likely a court would accept such a challenge.

My hypothetical is not too far-fetched. I encourage you to read the decision issued last week by the US Court of Appeals for the Seventh Circuit in NRA v. Chicago. A panel of three judges on the Seventh Circuit ruled that Heller did not apply against the States, and thus upheld the City of Chicago's blanket handgun ban. The panel claimed only one previous decision of the US Supreme Court addressed the issue, and they were bound by it. The panel also stated that, were they free to address the merits of the issue, they did not think that it a a good idea to rule that the 14th Amendment incorporated the Second Amendment. Their reason? Because then states and municipalities would not be able to ban the right of self-defense. This is how scary some courts are. Thankfully, the NRA has already filed a petition for certiorari with the US Supreme Court. I expect the cert petition to be granted.

Libertarian71
06-08-2009, 7:31 PM
Libertarian71, Don't get me wrong. Your views are certainly noble in their ideals. But they are mostly just your ideals.

LEO's deal in current law as written. They have to. Because if they practiced making up the law as they went along or they "thought it should be" there would be chaos.

I too do not always agree with laws, but when I was a LEO I took an oath to enforce and protect both the constitution as well as the laws of our nation and state.



As a lawyer licensed in two states, I too took an oath to defend the Constitution. But it is my belief that any law which is repugnant to the Constitution is null and void.

Interestingly, I was recently called for jury duty in LA County. During the voir dire in a drug possession case involving heroin, I explained trthfully to the court that I am a libertarian, am opposed to the drug laws, and would vote to acquit the accused. I stated that drug criminalization is unconstitutional as a legal matter, and unwise as a policy matter. The court then asked if, notwithstanding my own personal views of the drug laws, if I could apply those laws were I on the jury. I stated flatly, "No." Needless, to say, I was eventually excused from serving on the panel.

So let me ask you. What if Heller goes down in flames due to changes on the Supreme Court. The Supreme Court rules the Second Amendment is a "collective right," and that states and localities are free to ban firearms. Further assume California ramps up current demographic trends: freedom loving types move out of the state in droves to Arizona, Nevada, Idaho, and Montana. The gun banners then increase their ranks in the Legislature, and they impose a blanket statewide ban on handguns. Every private citizen must "voluntarily" turn in their firearms. Those that do not will have their firearms confiscated, and then be marched off to some kind of state detention camp as a punishment.

Would you enforce the confiscation order if called upon to do so?

Libertarian71
06-08-2009, 7:35 PM
You're views are interesting... they are just a little unrealistic in maintaining a civilized society. And they are certainly not the law of the land as we practice now on the day to day.

FWIW, I am a libertarian anarcho-capitalist. But I'd settle for the Constitution, as written, originally understood, and as formally amended -- if only the courts, Congress, and the executive branch had any inclination to faithfully follow it.

SVT-40
06-08-2009, 9:04 PM
As a lawyer licensed in two states, I too took an oath to defend the Constitution. But it is my belief that any law which is repugnant to the Constitution is null and void.

So let me ask you. What if Heller goes down in flames due to changes on the Supreme Court. The Supreme Court rules the Second Amendment is a "collective right," and that states and localities are free to ban firearms. Further assume California ramps up current demographic trends: freedom loving types move out of the state in droves to Arizona, Nevada, Idaho, and Montana. The gun banners then increase their ranks in the Legislature, and they impose a blanket statewide ban on handguns. Every private citizen must "voluntarily" turn in their firearms. Those that do not will have their firearms confiscated, and then be marched off to some kind of state detention camp as a punishment.

Would you enforce the confiscation order if called upon to do so?

Here is what is nice about NOT being an attorney and being a LEO. LEO's deal in reality. Not some Disneyland world where one can think up any and all theoretical situations where there is no "just answer".

What I can say is, if there is a situation similar to the one you describe. It will be the fault of lawyers and there ilk. For to really screw something up just get a bunch of egotistical attorneys together and watch to fun. Because I would bet dollars to donuts than very few lawyers would risk one single bit of their hide to make any real sacrifice for society today. Very few would make the "ultimate sacrifice" as many LEO's do each year defending the citizens of our country..

The supreme court is a prime example of this. When rights common to all early Americans ( the right to keep and bear arms ) is debated with such triviality.

I would bet any amount of $$$$ that if you had LEO's vote as to the clear meaning of the second amendment, it would be a landslide in favor of it being a individual right. Not a collective right as four out of nine justices voted.

In your own statement you contradict your self :

"As a lawyer licensed in two states, I too took an oath to defend the Constitution. But it is my belief that any law which is repugnant to the Constitution is null and void"


Actually you took no oath to "defend" the constitution. The attorneys oath states you will "support" the constitution.

Only the military and the police take an oath to "defend" the constitution.

Below is the attorneys "oath"

Upon admission to the bar, every applicant shall, in open court, take and subscribe an oath to support the Constitution of the United States and the Constitution of this State, and take the following oath, or, in the case of an applicant conscientiously scrupulous of taking an oath, such applicant shall make appropriate affirmations to the same effect: [1975, c. 66 § 5 (amd).]

"You solemnly swear that you will do no falsehood nor consent to the doing of any in court, and that if you know of an intention to commit any, you will give knowledge thereof to the justices of the court or some of them that it may be prevented; you will not wittingly or willingly promote or sue any false, groundless or unlawful suit nor give aid or consent to the same; that you will delay no man for lucre or malice, but will conduct yourself in the office of an attorney within the courts according to the best of your knowledge and discretion, and with all good fidelity, as well as to the courts, as to your clients. So help you God."


Interesting in the attorneys oath there is no requirement to follow the law or not commit any crime.

By your own statement you remove yourself from society by deciding yourself which laws you will and will not follow. It must be nice to live in the elevated world where you get to decide which laws you will follow and which laws you find by your words are "null and void"


Are you sure you are not a judge????

Libertarian71
06-09-2009, 12:47 AM
What I can say is, if there is a situation similar to the one you describe. It will be the fault of lawyers and there ilk. For to really screw something up just get a bunch of egotistical attorneys together and watch to fun.

Lawyers are merely tools, used by the government to create ways to justify and rationalize the undermining of our liberties. It is government itself which is the problem.


Because I would bet dollars to donuts than very few lawyers would risk one single bit of their hide to make any real sacrifice for society today. Very few would make the "ultimate sacrifice" as many LEO's do each year defending the citizens of our country.

I am not going to argue with you on this. But you shouldn't trot this out as a debating point. I agree that there are plenty of dirtbag lawyers. But I practice with lawyers that have defended LEO numerous times in civil suits for excessive force. I bet the LEO were glad to have some intellectual firepower on their side when facing drastic civil liability.


I would bet any amount of $$$$ that if you had LEO's vote as to the clear meaning of the second amendment, it would be a landslide in favor of it being a individual right. Not a collective right as four out of nine justices voted.

Perhaps. I wonder what the vote would be among the LAPD gun unit.



In your own statement you contradict your self :"As a lawyer licensed in two states, I too took an oath to defend the Constitution. But it is my belief that any law which is repugnant to the Constitution is null and void."

That is not a contradiction. That is an affirmation that the Constitution is the supreme law of the land, and any law contrary to it is null and void. See Marbury v. Madison (1803).



Actually you took no oath to "defend" the constitution. The attorneys oath states you will "support" the constitution.

Only the military and the police take an oath to "defend" the constitution.

Do you really believe that only the military and LEO defend the Constitution? Who defends the Constitution when a government agent or official deprives someone of their constitutional rights by committing a federal constitutional tort in violation of 42 USC sec. 1983? That's right, its the lawyer who pursues the claim in court (E.g., lawyer Gerry Spence, who after obtaining an acquittal in Idaho federal court of Randy Weaver in the Ruby Ridge incident, pursued a federal constitutional tort claim against the federal agents who shot Weaver's wife in the head while she was standing in her kitchen with a baby in her arms, shot to death his teenage son in the back, and even shot his Golden Retriever to boot). Who defended the Constitution in the face of the DC gun ban?

Who defends the Constitution when the government attempts to suppress speech?

Who defends private citizens when their property is condemned in violation of the Fifth Amendment?

Who defended the Constitution back in the mid-1990s when Congress overreached their constitutional authority under the Commerce Clause in enacting the "Gun Free School Zones Act"?

It seems to me that, in each of the cases cited, above, it was lawyers who were defending the Constitution.


Interesting in the attorneys oath there is no requirement to follow the law or not commit any crime.

By your own statement you remove yourself from society by deciding yourself which laws you will and will not follow. It must be nice to live in the elevated world where you get to decide which laws you will follow and which laws you find by your words are "null and void"


I was referring to the practice of jury nullification, which going back to founding times, was well accepted. Juries historically enjoyed the right to determine the justice and fairness of criminal laws. Nullification was a bulwark against corrupt legislators, corrupt executive branch officials, and corrupt courts. I don't intend the debate you on the drug laws in this thread.

SVT-40
06-09-2009, 11:04 AM
"Do you really believe that only the military and LEO defend the Constitution? Who defends the Constitution when a government agent or official deprives someone of their constitutional rights by committing a federal constitutional tort in violation of 42 USC sec. 1983? That's right, its the lawyer who pursues the claim in court (E.g., lawyer Gerry Spence, who after obtaining an acquittal in Idaho federal court of Randy Weaver in the Ruby Ridge incident, pursued a federal constitutional tort claim against the federal agents who shot Weaver's wife in the head while she was standing in her kitchen with a baby in her arms, shot to death his teenage son in the back, and even shot his Golden Retriever to boot). Who defended the Constitution in the face of the DC gun ban?"

Here is the attorneys oath one more time:
Upon admission to the bar, every applicant shall, in open court, take and subscribe an oath to support the Constitution of the United States and the Constitution of this State, and take the following oath, or, in the case of an applicant conscientiously scrupulous of taking an oath, such applicant shall make appropriate affirmations to the same effect: [1975, c. 66 § 5 (amd).]

"You solemnly swear that you will do no falsehood nor consent to the doing of any in court, and that if you know of an intention to commit any, you will give knowledge thereof to the justices of the court or some of them that it may be prevented; you will not wittingly or willingly promote or sue any false, groundless or unlawful suit nor give aid or consent to the same; that you will delay no man for lucre or malice, but will conduct yourself in the office of an attorney within the courts according to the best of your knowledge and discretion, and with all good fidelity, as well as to the courts, as to your clients. So help you God."


There is a difference between support and defend. The attorneys oath is what it is. Plain and simple.

The difference is, One who supports the constitution has no "skin" at risk.

One who defends the constitution Risks their life an blood.

The only risk attorneys have is being late for lunch, Or maybe a paper cut. Ouch those really hurt!!!

So yes, there is a big difference. There just is.

SVT-40
06-09-2009, 12:00 PM
Lawyers are merely tools, used by the government to create ways to justify and rationalize the undermining of our liberties. It is government itself which is the problem.


I am not going to argue with you on this. But you shouldn't trot this out as a debating point. I agree that there are plenty of dirtbag lawyers. But I practice with lawyers that have defended LEO numerous times in civil suits for excessive force. I bet the LEO were glad to have some intellectual firepower on their side when facing drastic civil liability.


Perhaps. I wonder what the vote would be among the LAPD gun unit.



That is not a contradiction. That is an affirmation that the Constitution is the supreme law of the land, and any law contrary to it is null and void. See Marbury v. Madison (1803).



Do you really believe that only the military and LEO defend the Constitution? Who defends the Constitution when a government agent or official deprives someone of their constitutional rights by committing a federal constitutional tort in violation of 42 USC sec. 1983? That's right, its the lawyer who pursues the claim in court (E.g., lawyer Gerry Spence, who after obtaining an acquittal in Idaho federal court of Randy Weaver in the Ruby Ridge incident, pursued a federal constitutional tort claim against the federal agents who shot Weaver's wife in the head while she was standing in her kitchen with a baby in her arms, shot to death his teenage son in the back, and even shot his Golden Retriever to boot). Who defended the Constitution in the face of the DC gun ban?

Who defends the Constitution when the government attempts to suppress speech?

Who defends private citizens when their property is condemned in violation of the Fifth Amendment?

Who defended the Constitution back in the mid-990s when Congress overreached their constitutional authority under the Commerce Clause in enacting the "Gun Free School Zones Act"?

It seems to me that, in each of the cases cited, above, it was lawyers who were defending the Constitution.



I was referring to the practice of jury nullification, which going back to founding times, was well accepted. Juries historically enjoyed the right to determine the justice and fairness of criminal laws. Nullification was a bulwark against corrupt legislators, corrupt executive branch officials, and corrupt courts. I don't intend the debate you on the drug laws in this thread.

So Lawyers are by your own admission are tools??? If you truly believe you are a "tool" why in the world do you allow yourself to be used in that way??

How many officers are in the LAPD gun unit? five or ten?? Common that's a flaccid argument.

I did not say that lawyers were not necessary. It's just that as a group have shown that most are truly just interested in their own personal enrichment. Nothing else. I've heard more than one attorney say they "will mount the best defense for their client until their money runs out".

You state. "the Constitution is the supreme law of the land, and any law contrary to it is null and void. See Marbury v. Madison (1803)."

I seriously doubt that gets you much traction in court. As the judge just yawns and tells you to get on with your defense.


This has gone way off course from the O/P's original issue so I'm done here.

Thanks for the new signature line though. It's a classic!!!

Libertarian71
06-09-2009, 1:12 PM
So Lawyers are by your own admission are tools??? If you truly believe you are a "tool" why in the world do you allow yourself to be used in that way??
Of course, I was referring to lawyers who do the bidding of the government. That was the context of the remark. Stick to the context.

I did not say that lawyers were not necessary. It's just that as a group have shown that most are truly just interested in their own personal enrichment. Nothing else. I've heard more than one attorney say they "will mount the best defense for their client until their money runs out".
Sure, there are dirtbag lawyers. Your kind is not immune, either. (See Ruby Ridge). And yeah, everyone hates lawyers until they've been arrested. And LEOs hate lawyers until they need one to defend them in a federal civil rights lawsuit.

You state. "the Constitution is the supreme law of the land, and any law contrary to it is null and void. See Marbury v. Madison (1803)."

I seriously doubt that gets you much traction in court. As the judge just yawns and tells you to get on with your defense.

The Constitution gets "traction" in court, my friend, when the court throws out illegally obtained evidence, or illegally obtained confessions. And the Constitution gets "traction" when you have to Mirandize an arrestee.

Thanks for the new signature line though. It's a classic!!!

I was referring to the lawyers who do the bidding of government, not the lawyers who fight the government in court. Now you force me to cull through all of your remarks, so I can, just as you, wrench them out of context and put them in my signature line.

Libertarian71
06-09-2009, 1:35 PM
The difference is, One who supports the constitution has no "skin" at risk.

Go tell that to the civil rights lawyers in the South in the 1960s who had to fight the Klan and corrupt local governmental officials to ensure citizens were not deprived of their rights.


One who defends the constitution Risks their life an [sic] blood.

And explain to me again who "defended" the right to keep and bear arms before the United States Supreme Court in the Heller case?

Ron-Solo
06-09-2009, 3:35 PM
Guys, lets don't turn this into lawyer bashing.

I think we can find common ground here that there are good cops and bad cops, just as there are good lawyers and bad lawyers.

I was gonna throw in a lawyer joke to lighten the mood but it would be counter-productive. :D

Aloha,

Ron

SVT-40
06-09-2009, 11:58 PM
Guys, lets don't turn this into lawyer bashing.

I think we can find common ground here that there are good cops and bad cops, just as there are good lawyers and bad lawyers.

I was gonna throw in a lawyer joke to lighten the mood but it would be counter-productive. :D

Aloha,

Ron

Oh , come on Dad. I never get to have any fun...... :smilielol5:

BobB35
06-10-2009, 7:32 AM
Actually in CA almost all public employees sign a loyalty oath stating they will defend the constitution. Kind of meaningless (as well as unconstitutional) if you ask me. The only people who DEFEND the constitution are the US military, not local or state LEOs, teacher, dog catchers, lawyers, etc.

Let's not expand the scope of one's duties, just because some words were uttered at some point......I mean come on if LEO's aren't responsible for defending a citizen from the rapist or abuser that is stalking them, I find it hard to believe they are responsible for the constitution. LEO's selectively enforce the laws they want, when they want. They are not obliged to do anything. As has been stated before, the para-militarization of the the LEO community has led to an inflated sense of purpose and responsibility.

As far as the duties of LEO's, that's a whole nother conversation, but it is a lot less than the average citizen thinks.

BTW this is not "Cop-Bashing" this is stating an opinion based on experiences and facts.

Libertarian71
06-10-2009, 12:08 PM
Oh , come on Dad. I never get to have any fun...... :smilielol5:

I think lawyer jokes are funny, just like LEO/donut jokes.

ilbob
06-10-2009, 2:36 PM
When they found Smith and took him to police headquarters, he refused to give another sample, telling the officers that he would have to “be tased” to give one. After detectives and officers tried to get Smith to comply with the court order, and he refused, they drive stunned him with a Taser and then took the DNA sample.

Seems to me the cops complied with his request to be tased. :)

razorx
06-10-2009, 2:50 PM
Not sure about law here, however, it would seem that tasering would be an appropriate measure to use to collect dna samples as long as there was a clearly defined and communicated guideline as to policies to enforce collection of dna evidence in a safe and controlled manner with progressive steps along the way. For example, a one sentence request for dna sample, suspect says "No", then one second later tasering. Without these specific published policies in place, the officer may open themselves up to significant liability.


Without these guidelines published or stacks of supporting case law, no way would I do this if I were an officer. In this case, maybe that was all covered.

Libertarian71
06-11-2009, 4:21 PM
Speaking of Tasering: http://www.cbsnews.com/video/watch/?id=5076656n

SVT-40
06-11-2009, 4:31 PM
Not sure about law here, however, it would seem that tasering would be an appropriate measure to use to collect dna samples as long as there was a clearly defined and communicated guideline as to policies to enforce collection of dna evidence in a safe and controlled manner with progressive steps along the way. For example, a one sentence request for dna sample, suspect says "No", then one second later tasering. Without these specific published policies in place, the officer may open themselves up to significant liability.


Without these guidelines published or stacks of supporting case law, no way would I do this if I were an officer. In this case, maybe that was all covered.

ALL departments have very specific use of force policies. The use of a taser or any force is guided the departments use of force policy.

The assertion in this case, by the suspects lawyer was the suspect was tasered because he refused to give a sample.

This is patently not true. He was tasered because he resisted verbally and physically. Only then was his restistance overcome by the use of the taser. The sample could then be obtained.

Textbook use.