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Judge Andrew P. Napolitano: The Government’s Trick To Take Care Of The Church


Edward and Kim Caniglia had an argument at their home in Cranston, Rhode Island, in which Edward retrieved a properly unloaded pistol and placed it on her dining table in front of Kim and said to his wife, “Shoot me now and get it over with.” Kim didn’t touch the gun and left the house for the evening. The next day, after unable to reach Edward by phone, Kim returned to the house with four local cops who met Edward outside on the back porch.

The police and Edward talked and he confirmed what had happened the previous day. The police then called an ambulance and ordered Edward to enter to take him to a hospital for a psychiatric evaluation.

Edward agreed to leave only if the police agreed not to go into his home and not to confiscate his firearms. The police agreed to both conditions. But as soon as the ambulance and Edward were gone, the police entered the house and grabbed Edward’s guns. The hospital sent Edward home with a clean mental health bill.

Edward then sued the police for unlawful arrest, search and seizure. Police claimed they came to Caniglia home not to investigate a crime but to take care of “community maintenance”. Can the police enter a private house without a search warrant to protect a resident of the house from themselves? In a word: no.

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Here is the backstory.

The fourth amendment to the constitution protects the typically American right to be left alone. It prohibits all unreasonable searches and seizures. Searches and seizures without guarantee are inappropriate – and therefore unconstitutional – unless they fall under the “Urgent Circumstances” exception.

An urgent circumstance is one in which reasonable minds believe that a criminal event is imminent that cannot be undone – such as murder or the destruction of evidence. These exceptions are not included in the fourth amendment, but have been grafted on by the courts on the basis of common sense and common sense.

However, sometimes the exceptions are based on an ideology that prioritises the police over individual rights. Such a priority is an expression of a police state, not a free society.

In a free society, rights are recognized as natural and cannot be submitted to the government’s needs and wants without due process – indictment, a fair hearing before a neutral jury with constitutional protection against which the government must prove guilt, and the right to appeal to insert.

In a police state, personal freedom is immediately suppressed out of consideration for the needs of the government. This contradicts the premises and language of both the Declaration of Independence and the Bill of Rights that personal freedom is the default position.

In reversing the U.S. Court of Appeals for the first circuit in the Caniglia case, the Supreme Court did not go as far as Thomas Jefferson or James Madison, who both used 18th century language to stand up for freedom as the standard position, but it did the lower federal courts not to extend the exemptions for requirements in the home.

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The exception to the fourth amendment that the First Circuit found was “Community Maintenance”. This ambiguous phrase denotes a doctrine that will enable the police to perform non-criminal law enforcement duties while being freed from the restrictions placed on them by the Fourth Amendment.

The First Circle found that, by claiming to be in charge of the community, the police could enter Caniglia’s home – without the consent of any of their owners, without a search warrant and without any articulate suspicion of criminal activity in the house – because they stepped in to protect Edward from himself and not for law enforcement purposes.

This is a dangerous constitutional interpretation theory, and anyone who believes the Constitution means what it says should be glad their wings were cut off by a unanimous Supreme Court last week. The danger in this doctrine is the government’s argument that the Constitution only withholds the police when they are investigating a crime.

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The FBI has made the same argument to the Foreign Intelligence Surveillance Court and Congress and has successfully convinced both of them that it can display raw intelligence – transcripts of phone calls, financial and medical data, emails, and text messages – without guarantee. claim to be looking for overseas security activities, not evidence of domestic crimes.

The doctrine of community maintenance is no less dangerous than electronic surveillance without guarantee. It’s a ploy used by the government that has been approved by federal and state courts in the United States pending the Caniglia decision.

These permissions contradict the plain language of the Fourth Amendment, which protects “people’s right to be safe in their people, homes, papers and effects” without exception based on the reasons for the government’s attack on privacy.

Privacy violations by British soldiers allegedly searching for stamps on all papers in colonial houses under the tax imposed by the Postage Stamp Act arguably sparked the American Revolution and prompted Madison and his colleagues to draft the fourth amendment. Madison knew the British search for stamps in colonial houses was a ruse; but at first sight it was an administrative function – tax collection – not a law enforcement function.

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Prosecutors and judges misunderstood the story and rejected the Bill of Rights and Declaration of Independence premise – that our rights stem from our humanity – arguing that the fourth amendment only limits government invasions of privacy during criminal investigations.

The fourth amendment’s directive to the government is clear: get an arrest warrant. However, if the government can bypass the warranty of the change through its choice of words – “law enforcement” or “community welfare” – the fourth change is toothless. And a toothless fourth change is the gateway to tyranny.

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