The Ethical Spectacle March 1995 (

Cutting Back the Fourth Amendment--But Not For Gun Owners

The title, the Ethical Spectacle, implies that the world around us--its law, politics, art, public and private life-- is a rich pageant of absurdity and contradiction. Every once in a while, something happens that so supports this thesis that it can be described here almost without comment--it tells its own story so well. The following was reported in the February 9, 1995 New York Times, under the title House Approves Easing of Rules on U.S. Searches:

....the House approved by 298 to 142 a measure to give prosecutors in Federal court more latitude in using evidence seized illegally, even evidence obtained without a search warrant.

Supporters of the measure said it would stop the all-too-frequent occurrence of criminals getting off on technicalities, as in cases in which evidence against them was ruled inadmissable because it was obtained with a faulty warrant.

An unlikely coalition of gun advocates and liberal Democrats blocked the House from extending the rule to agents of the Bureau of Alcohol, Tobacco and Firearms. The bureau, which has been involved in several disputed raids to seize firearms, is the scourge of gun owners....

Isn't that special!

Hell, I can't resist commenting, after all. The Fourth Amendment protects us against unreasonable searches and seizures. In short, these must be carried out upon probable cause, and, most of the time, upon a previously-obtained judicial warrant. (Exceptions are when time doesn't permit, for example a gunman [oops, sorry] is hiding with a hostage.) Fourth amendment law in the late 20th century is effectively founded on the premise that the police at times have been very abusive.

The new law would confirm a "good faith" exception to the rule, allowing illegal evidence to be introduced if it was seized in good faith (the cops didn't know they were violating the law.) I can testify based on some personal evidence that, despite widespread corruption, cynicism and general lawlessness in the New York City police department, the cops are ALWAYS in good faith--try proving that one isn't, especially if you are a social outcast. One of the more interesting cases assigned in my first year of law school involved a hippie who had been arrested after a policeman observed a marijuana cigarette falling out of his pocket. The judge, in overruling the defense's Fourth Amendment objections, observed that, though it was hard to disbelieve the police witness in any individual case, the frequency with which hippies were letting joints fall to the ground in front of interested policemen was very alarming to him. Speaking as someone who was illegally searched by the police once, at age fifteen, I have no doubt that if the officer had found anything, I would have been one of those "falling evidence" defendants. (This week's episode of NYPD Blue portrayed two sympathetic policemen--one of them the series' star--discussing whether the cocaine for which a driver was arrested had really been in the door pocket or, for Fourth Amendment purposes, was "found" in plain sight on the seat. Hollywood does mirror reality sometimes, after all.)

All right. So we get obsessed with the concept that defendants who should have gone to prison are walking because the police are clumsy or overzealous, and we want to create a "good faith" exception that will assist the police in locking these defendants up by telling a little white lie. But not the BATF! We wouldn't want them to put gun owners away, by telling that kind of lie! No sir!

I envision a day in America where the best guarantee that you will have Fourth Amendment protection will be to keep a gun in the house and another one in your car--keep one everywhere that you think the police might search. You really have to applaud the N.R.A.--in my wildest moments, I could never have imagined a scheme in which gun ownership will be the threshold issue in deciding what Constitutional rights apply. Imagine doing the same for the First and Fifth amendments--free speech and the right against self-incrimination, but only for registered gun owners. The NRA believes that the power of the gun is the only guarantee of political liberty in America. With legislation like this, the gun is no longer important in itself; it becomes a token, a kind of identity card or credit card, entitling the bearer to special privileges.