Citizen
Founder's Club Member
My hat is off to the fellow who alerted me to this. I name and link him below.
Today is the anniversary of an incident where government grabbed more power. "Yawn", you say? "Which day of the year is left when government did not grab more power?", you ask? "There are only 365 days in a year, Citizen. We're way past the point when such anniversaries started doubling up."
This one is a little special to OCers. Today is the anniversary of the US Supreme Court (SCOTUS) inventing out of thin air a power of police to detain you. Today is the anniversary of Terry v Ohio.
Some time ago, it dawned on me that there was a massive internal self-contradiction in the written SCOTUS opinion. That prompted me to recall or re-read the dissenting opinion, which gave even more evidence--the US Supreme Court invented out of thin air the power of police to detain people.
For several years, I've taken pretty much every opportunity to highlight that internal contradiction and the separate evidence in the dissent. And, I've seen little support or validation for my thinking. Oh, no, don't get me wrong. I didn't see much criticism, either. It was almost like nobody was listening. I was saying to myself, "Please, will somebody agree with me!"
And then today I found out that a respected criminal defense attorney felt somewhat similarly about Terry v Ohio. Maybe for different reasons. Maybe with a different perspective. But, man, when I saw the headline on his blog post, I nearly fell out of my chair.
Here, is my take on the case Terry v Ohio, today's anniversary. The short version, because I'm not trying to convince; just whet the interest of new readers:
Early in the written opinion, SCOTUS expressly shoots down a government argument that a stop-and-frisk (focus on the stop part for a moment) was not a seizure under the Fourth Amendment (search and seizure). Expressly. SCOTUS, to support its repudiation of the government argument, quotes a great court case. The gist of that quote is that a government agent can only interfere with someone if he has clear and unquestionable authority of law. Then, in the last paragraphs of the opinion, SCOTUS declares police have a power to detain someone under certain (yet, somehow, fairly broad) circumstances. So, here is the massive contradiction: if the cop had clear and unquestionable authority of law in the first place, how did this case get all the way to the US Supreme Court? You see it? The very fact the case got argued all the way to the US Supreme Court proves the cop did not have clear and unquestionable authority of law at the time he detained that guy.
The second evidence that SCOTUS invented out of thin air a power of police to detain people comes in the dissent. The dissenting judge pointed out that the majority was handing police more power than magistrates. (Magistrates need probable cause to issue a warrant, not mere suspicion.) Oh? The dissenting judge's chosen textual language shows the majority was doing it for the first time.
So, that's part of the reason why I say government invented out of thin air a power of police to detain someone. Their own words prove it.
The criminal defense attorney who alerted me to today's anniversary is John Wesley Hall. He runs a blog called FourthAmendment.com. The word limit on posts on this forum prevents me from fully expressing how much I've learned from reading his blog. He simply posts Fourth Amendment cases he thinks criminal defense attorneys should know about. But, those blog posts across years have told me more than...I don't have the words.
Here is the link to Mr. Hall's blog post about the anniversary:
http://fourthamendment.com/?p=26144
Today is the anniversary of an incident where government grabbed more power. "Yawn", you say? "Which day of the year is left when government did not grab more power?", you ask? "There are only 365 days in a year, Citizen. We're way past the point when such anniversaries started doubling up."
This one is a little special to OCers. Today is the anniversary of the US Supreme Court (SCOTUS) inventing out of thin air a power of police to detain you. Today is the anniversary of Terry v Ohio.
Some time ago, it dawned on me that there was a massive internal self-contradiction in the written SCOTUS opinion. That prompted me to recall or re-read the dissenting opinion, which gave even more evidence--the US Supreme Court invented out of thin air the power of police to detain people.
For several years, I've taken pretty much every opportunity to highlight that internal contradiction and the separate evidence in the dissent. And, I've seen little support or validation for my thinking. Oh, no, don't get me wrong. I didn't see much criticism, either. It was almost like nobody was listening. I was saying to myself, "Please, will somebody agree with me!"
And then today I found out that a respected criminal defense attorney felt somewhat similarly about Terry v Ohio. Maybe for different reasons. Maybe with a different perspective. But, man, when I saw the headline on his blog post, I nearly fell out of my chair.
Here, is my take on the case Terry v Ohio, today's anniversary. The short version, because I'm not trying to convince; just whet the interest of new readers:
Early in the written opinion, SCOTUS expressly shoots down a government argument that a stop-and-frisk (focus on the stop part for a moment) was not a seizure under the Fourth Amendment (search and seizure). Expressly. SCOTUS, to support its repudiation of the government argument, quotes a great court case. The gist of that quote is that a government agent can only interfere with someone if he has clear and unquestionable authority of law. Then, in the last paragraphs of the opinion, SCOTUS declares police have a power to detain someone under certain (yet, somehow, fairly broad) circumstances. So, here is the massive contradiction: if the cop had clear and unquestionable authority of law in the first place, how did this case get all the way to the US Supreme Court? You see it? The very fact the case got argued all the way to the US Supreme Court proves the cop did not have clear and unquestionable authority of law at the time he detained that guy.
The second evidence that SCOTUS invented out of thin air a power of police to detain people comes in the dissent. The dissenting judge pointed out that the majority was handing police more power than magistrates. (Magistrates need probable cause to issue a warrant, not mere suspicion.) Oh? The dissenting judge's chosen textual language shows the majority was doing it for the first time.
So, that's part of the reason why I say government invented out of thin air a power of police to detain someone. Their own words prove it.
The criminal defense attorney who alerted me to today's anniversary is John Wesley Hall. He runs a blog called FourthAmendment.com. The word limit on posts on this forum prevents me from fully expressing how much I've learned from reading his blog. He simply posts Fourth Amendment cases he thinks criminal defense attorneys should know about. But, those blog posts across years have told me more than...I don't have the words.
Here is the link to Mr. Hall's blog post about the anniversary:
http://fourthamendment.com/?p=26144
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