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Title: Warrantless Blood Draw Stopped by Utah Nurse Was Legal in Another Reality (The facts and the law are on Alex Wubbels' side.)
Source:
Reason
URL Source: https://reason.com/blog/2017/09/06/ ... s-nurse-who-stopped-warrantles
Published: Sep 6, 2017
Author: Jacob Sullum
Post Date: 2017-09-07 07:01:56 by Deckard
Keywords: None
Views: 13373
Comments: 85
Alex Wubbels, the Salt Lake City nurse who was arrested on video after she refused to let a cop draw blood from an unconscious patient without consent or a warrant, has been widely praised for taking a stand against unconstitutional invasions of privacy. Her admirers do not include Gregg Re, a lawyer who argues in a recent Daily Caller piece, provocatively headlined "Arrested Utah Nurse Had It Coming," that "Wubbels was likely legally wrong under federal law." But Re cannot back up that contrarian claim without resorting to hypotheticals that do not bear any resemblance to this case. Suppose "your neighbor bursts through your front door with a pile of drugs in his hands," Re says. The neighbor is trailed by cops who demand entry as he flushes the drugs down your toilet. If you refuse to let the cops in, Re says, they would be justified in entering anyway and might even arrest you if you tried to interfere. The point, he says, is that "police simply do not need a warrant if exigent circumstances justify an urgent search and seizure of evidence." That scenario is a red herring, because Re never explains how Wubbels resembles the drug dealer's uncooperative neighbor. In particular, he fails to describe the exigent circumstances that supposedly justified Det. Jeff Payne's demand for her patient's blood, relying unstead on inapplicable generalities. "The imminent loss of blood evidence, which would be useful in a drunk-driving case, qualifies as a potentially exigent circumstance," Re writes. Potentially, yes. Necessarily, no. In the 2013 case Missouri v. McNeely, the Supreme Court said "the natural dissipation of blood alcohol" does not automatically provide the "exigent circumstances" that would justify a nonconsensual, warrantless blood draw in a drunk driving case. "When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so," the Court said. "While the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case...it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances." Re suggests the totality of the circumstances in the Utah case might have justified Payne's attempt to draw blood from William Gray, a truck driver who was critically injured in a crash with a vehicle driven by a man who was fleeing police. But as Scott Greenfield notes, "there was no attempt to obtain a warrant for the blood draw or reason why a warrant could not be obtained within a time frame sufficient to preserve the evidence." What's more, Gray was not a suspect in a drunk driving case; he was the victim of the other driver, who was killed in the crash. That fact, Re concedes, "raises questions as to whether it was legally reasonable for the police to obtain his blood sample if he was, in fact, a victim not suspected of any crime." Payne reportedly wanted Gray's blood to help show that he bore no responsibility for the collision. That goal does not qualify as probable cause for a search and seizure, which requires a "fair probability" that evidence of a crime will be discovered. In short, although probable cause and exigent circumstances can justify a nonconsensual, warrantless blood draw, there is no evidence that either existed in this case. Presumably that's why, although Payne handcuffed Wubbels while accusing her of interfering with his investigation, no charges were filed against the nurse. It is also why Payne, who is on administrative leave while his department conducts an investigation of his behavior, could face criminal charges instead. Re aims to throw cold water on the "near-universal outrage" provoked by Wubbels' arrrest and correct "reams of inaccurate reporting on the incident." Instead he muddies the issue by arguing that Payne's actions could have been legal if the facts were different. 
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Begin Trace Mode for Comment # 77.
#1. To: Deckard (#0)
(Edited)
Re aims to draw attention to himself, which he did. As far as the issue itself goes, he threw gasoline on a fire that just made the whole case that much worse for the cop and his supervisor. Legal sophistry is not going to save Payne or his supervisor, it is just going to make those who want to get him willing to engage in their own blunt force legal sophistry, and power is decided not by right, but by politicians - who answer to voters, not cops. Re's article, if it does anything at all, will merely succeed in enhancing the punishment of the cop. When you have to resort to storytelling to argue for somebody's egregious behavior - when you have to essentially make up an entirely new case and set of facts, because the real case and facts are so bad for you - you're better off throwing yourself on the mercy of the court. Payne and his supervisor are going to have to rely on mercy, because the law is going to nail them both to a cross. If they stand on law, they die: they broke it, and the nurse upheld it. Every judge will see it that way. Every politician will see it that way. The cops don't have a pot to piss in. The police chief KNOWS THAT, which is why he is not standing with his officers. They are to be cut away and thrown to the public to be torn apart, in order to protect the department. This wasn't some black thug who was abused on camera. It was an elite white professional in medicine, which is held in greater trust and higher esteem than cops. The police chief knows that. Payne and his supervisor are going to be broken men, and nobody will have any sympathy for them. They're scapegoats.
The police chief KNOWS THAT, which is why he is not standing with his officers. The chief did try. He only took Payne off blood-draw duty initially. It was only after nurse Wubbels obtained and released the video that Payne and his supervisor (seen in the video talking to Wubbels in the cop car) were suspended. So that blue line held firm for over a month until the public exploded after seeing the video.
But now it's out - because the nurse was angry, self-righteous and knew she was right, and her employer was angry and self-righteous also, and was right. And because the public worries about bully cops when they bully white professionals: THAT is not what the cops exist to do. When they bully blacks and illegals, most people really don't care. But when they start bullying white medical professionals, well, that means that the cops are getting too big for their britches. We all worry about that, and this crystallizes it. So, she brought it forward, and has an economic incentive to do so as well. She's angry, and she can win money in court if she presses it. A white jury will side with her, and a black jury will too. Mr. White won't, but he'll be voir dired off the jury. Now that it's out there, it crystallizes the zeitgeist. The case law is utterly terrible for the cops. Neo-Confederates care about the states- rights issue concerning Utah law. And they are a sliver of the population. Everybody else knows that the Supreme Court is the law of the land, and what they've said is clear and congenial to the attitudes of most people. The cops don't have a pot to piss in. Sure, as long as the cops are able to keep this stuff sub rosa, people don't see, and don't get riled. But they can't stop this nurse, she's got a huge head of steam, she's right, the public is aware and aroused. It's sort of like Pearl Harbor, really, what Payne did here. There was no path back for the Japanese after that: the people were riled. Now, if the police force itself resists, then the hits will keep coming until they have their Appomattox moment. It's so much EASIER for them to claim that Payne was a rogue, unstable ass, publicly crucify him and hang his bloody pelt in the public square as an offering to the public, and then be allowed to return to their usual quiet and secretive ways. That's what they'll do, too. When the only people who are standing up and defending it is a neo-Confederate fascist like Mr. White, they've already lost. Importantly, law enforcement and prosecutors are not even attempting to defend Payne. He's going to the scapegoat, all of the fury will be focused on him. He'll be thrown to the mob, receive political justice and will be a poor and broken man thereafter, a horror at whom people wag their heads. The police will move on. They will not defend this guy, and the unions are smart enough not to destroy themselves trying to stand against an aroused public. It all seems pretty just to me. Bullies should be bullied.
Even if a juror tries to nullify, a hung jury would result in a second trial where it is very unlikely there would be a second juror to nullify. The police can hardly claim ignorance of the law after two big USSC cases. Certainly, the courts don't accept that excuse from anyone else, let alone those who are charged with enforcing the law on the public. It could be that the prosecutors will weasel around, trying to find a way to let these two cops off the hook after the public has moved on. But I think the heat is very high on this one and the local media will follow it closely. So the cops are screwed, I think. I think, much as in any jurisdiction, they will look for ways to let Payne off. But the heat is high and the public will likely remain aroused. The hospital imposing restrictions on cops on the premises (access to emergency rooms, unable to speak to nurses) just ratchets the pressure higher. The judge, the prosecutors, the rest of the cops, all have to wonder how they will be treated the next time they get shot or hurt. Or a family member. So I don't think this one just goes down the memory hole months from now.
Ignorance? They were FOLLOWING state law. Your retort is that those are old laws that haven't been cleaned up yet. Give me a f**king break. "I think, much as in any jurisdiction, they will look for ways to let Payne off." Hah! Let him off what? Being rude? What's he charged with? I hope he sues them for $10 million (plus back pay).
That wasn't my retort. My retort is that the federal law blots out the state law whether or not the state law is repealed. The legislators of Utah can be as stubborn as they will. What the Supreme Court says the law is, is also the law in Utah, and the Utah statutes are voided by the Supreme Court decision, whether Utah chooses to repeal the law on its books or not. Ignorance of the law is no excuse, we are told, by the cops, all the time. It is the Supreme Law of the Land that the Supreme Court has the final decision as to what the Constitution means, and the Constitution is supreme over all federal and state statutes within its purview. Drawing blood is squarely within the Constitutional purview, so by writing their decision, the Supreme Court legally erased the Utah statute, regardless of what the Utah legislators do. The Law of the Land - which is The Law - is that the police CANNOT take a blood sample without consent or a warrant. Period. The fine distinctions of the former Utah law are no longer law at all, whether the Utah legislature acts or not, because the Supreme Court has ESTABLISHED the law for Utah and everywhere else by its decision. Everything in state law or local law contrary to that has ALREADY BEEN VOIDED, by the Supreme Court action. That it remains on the statute book is irrelevant. It IS NOT LAW anymore, because the Supreme Court is above that law, and its decisions are the law, not the old law. Too Conservative gives the example of the sodomy laws. If the Utah troopers burst into somebody's house with or without a warrant, and find two consenting adult men boffing each other, if they arrest them for that they have broken the law, because The Law is that they can do that, and that the state cannot punish it. The state has an old, voided law on its books that it is illegal, but the cops break the law if they attempt to enforce that illegal law against the ACTUAL law, which was set in Washington by the Supreme Court. The Supreme Court decision on the matter IS "The Law". The Utah statute is no longer law. It has been voided. Whether we're talking buggery or involuntary blood donations, that is still the case. So when police seek to enforce an illegal law, they commit assault and wrongful imprisonment of people acting lawfully. That then puts the police, and the police force budget, in the hazard for criminal and civil prosecution. Ignorance of the law is no excuse, and the police forces have a duty to make sure that the cops know the law - which, in this case, was not set by Utah but by Washington. Now, one may have a philosophical problem with that, but the police are not entitled to act on their philosophical issues. Under our constitutional system, the Supreme Court is the final arbiter of the Constitution, and the Constitution is the Supreme Law of the land. So the cop leaves the parameters of his duty if he tries to erect a "states rights' political argument as to why he can follow the state statute and ignore the Supreme Court decision. If he goes past theoretical argument into arresting somebody for doing lawful things, he passes over into abuse of authority and should be prosecuted and hammered. No breaks. Ignorance of the law, on the part of the police especially, is absolutely no excuse. The same abusive officers will tell YOU so, and they are also subject to law.
That post wasn't directed at you. "What the Supreme Court says the law is, is also the law in Utah" Maybe. I mean, the defense can certainly bring it up at trial and the judge may or may not agree. But at this stage, all the cop tried to do was draw the blood.
But at this stage, all the cop tried to do was draw the blood. Nope. There's no procedural requirement that the cops be permitted to get what they want, and the defendant can sort it out at trial. The cops don't have the right to take what they have no right to take. The cops had no right at all to arrest that woman. Now THEY'RE the defendants, so THEY can argue at THEIR trials that they DID have the right to do what they did. There's no reason to let the process that the cops would prefer be the one that governs. Rather, the process that holds them accountable seems to be the better one.
He had the power to take the blood under State of Utah law and police department policy. If the law is outdated or police policies are wrong, that's not his fault. The fact that the police department changed their policies after this incident is telling. Yet you still blame the cop. Idiot.
The fact that the police department changed their policies after this incident is telling. Yet you still blame the cop. Idiot. I do blame the cop, you dumb prick. And the reason I do is because a cop is not simply charged with knowing the local and state laws. Ignorance of the federal law is no excuse, and it is certainly no excuse for a cop. He had no power to take that blood, because the State of Utah law to the contrary, and police department policy to the contrary, are illegal, because they are unconstitutional. The Supreme Law of the Land is the Constitution, not local laws and police procedures. Where state law and police procedure contradict federal law, they are illegal, and it's illegal for a cop to follow illegal law. Ignorance of the law - and federal supremacy IS the law - is no excuse. The cop acted illegally, following illegal Utah law and illegal Utah police procedure. It was his legal obligation to know the law, and he didn't. The law is outdated and police policies are wrong, and ignorance of the law is no excuse: it is the cop's personal responsibilty to know the law and enforce it, just as it is everybody else's personal responsibility to know the law. Ignorance of the law is no excuse for anybody, including cops and police departments. ESPECIALLY cops and police departments. It was his fault and their fault for having illegal laws and procedures. By enforcing them, they committed federal crimes and are criminals. His JOB was to enforce the law, and that MEANS enforcing federal law and not state law, where federal law has erased local law. It's his duty to KNOW THAT federal law and to enforce IT, and not the state law or department procedure. He was ignorant of the law, broke it, made a false arrest, so he is a criminal. I would be willing to grant mercy if he admitted he was wrong and was ignorant of the law. But to the extent that there is doubling down on his right to enforce illegal law - nope - he's defiant in his criminality, he is resisting the law. He must, therefore, be destroyed as an example. Of course the police department realized they were being criminals and changed their policies immediately. Ignorance of the law was no excuse, they realized their ignorance, and they changed. Of course I blame the cop, prick. Of course I blame you for thinking like the cop, prick. Of course if you insult me I will insult you. I recognize that you're a Jack Chick, writing inflammatory things to rouse the rabble. Insulting me is fun. Insulting you is fun. But I'm not an idiot - even the people who know me here and hate me know that I'm not stupid - but you are a prick. Everybody knows that too. Even you.
Meaning that states do not have the right to legalize marijuana for medical or recreational use? Do we agree on that?
Well, they have the power to pass unconstitutional statutes, sure. They can put illegal laws on the books just like they can take them off. What they can't do is enforce the illegal laws, because federal supremacy applies. In the case of marijuana use, the issue is that when the state legalizes it, and tells its officers and courts to stop enforcing the state laws, and not enforce the federal laws, it is much like the sanctuary cities. It's unconstitutional, but the thing being ordered is a negative act. Prosecutors and police have always had the discretion to decide how to allocate their resources. So you end up in a weird situation where the police and prosecutors have state laws that are unconstitutional on their face (because contrary to federal law that is supreme on the issue), but those state laws tell them NOT to arrest people. The police are funded by the state and locality, and if they disobey, they will be unfunded. They don't work for the federal government, and the federal government never did have the authority to set their priorities for them. So, on these marijuana and immigration cases, what the states are doing is defying federal law by removing a state statute and telling their officials that, if they want to keep their jobs, they are not to enforce the federal law. The police, for their part, have not attempted to fight the states on this, because they would be fighting their paymasters, and how do you do that? Work for free? Get fired? Even if a cop is wrongly fired, he's still not a cop, and he still won't enforce the law. Similarly, just before the Civil War there was a federal Fugitive Slave law, but the Freesoil States systematically refused to enforce those laws, turning a blind eye to slaves moving through their areas. As Trump is finding, when you are facing a state or a city that defies a federal law through NON-enforcement of a statute, it is very difficult to do anything about it. It's really easy to shut down something like enforced segregation - the feds can release the prisoners and quash the trials. But when a polity takes a passive, non-enforcement stance, they are indeed in philosophical violation of the federal law and constitutional logic, but it's very hard to actually DO anything about it - a bit like enforcing the laws against suicide: how do you punish the person who succeeded? The instruments available to the federal government are very blunt: they can send in FEDERAL agents to enforce the federal law, and they do. But there are only so many federal agents, and funding more of them is a political matter for Congress to decide. Cutting off federal funds is a largely idle threat. For to do that, elected Republican and Democrat officials have to vote to do that, and by doing so they alienate most of the voters of the state or city that is defying the federal law (through inactivity - it's easy to stop an aggressive positive act, but it's very difficult indeed to "punish" the lazy non-enforcement of something. So, do states have the RIGHT to legalize marijuana? No. But if they do, what REMEDY is there against them? None good. The feds would have to take various politically difficult and unpopular measures against the state, further alienating the state and its voters, who also vote in federal elections. In a democratic system, the law as written does not always prevail. The will of the masses is a law of its own. 46 states have legalized medical marijuana and won't enforce the federal law. What is the federal government to do now? Increase federal law enforcement personnel 46-fold. You might be willing to pay for that, but are the Democrats or Republicans willing to do that? In four states, perhaps. Which means NO. There is an old axiom of the Common Law: No remedy, no right. So, one can assert that one has a "right" because of goodness or legal logic, but if there is no means to bring the force to bear through the legal or political or other systems to make that right a reality on the ground, then you really don't have the right. You have the assertion of the right, but it doesn't really exist, because too few people acknowledge it for it to be able to be enforced. This nurse, by contrast, was legally right on paper, because of the federal Supreme Court decision: the officer had no right to get the blood without a warrant. Full stop. Therefore, he had no right to arrest her. He thought he did, so he did. But she has remedies. Authorities higher than the cop looked, said "Whoa!", undid the arrest, did not attempt to prosecute her, and are now looking to prosecute the cop and his supervisor. She has a clear remedy, a whole set of them, and therefore clearly has a right. But against the states that legalize marijuana, what can the federal government effectively do? They can enforce the law themselves, without state cooperation. They're already doing that. It wastes a lot of resources and the federal officials don't want to do it. They could try some heavy-handed collective punishment things, like cutting off funds - the equivalent of the British Crown closing Boston Harbor and sending Redcoats. But those are very harsh and aggressive acts, and there is always the distinct possibility that, if you do that, you might find the whole of the people turning against the government itself, as the American colonists did. Sending the Redcoats was within the rights of the British King, but it so incensed the populace that he ended up losing even the appearance of authority. Neither Trump nor the Congress want to risk directly taking on 46 American states over an issue on which the majority of the people in all 46 of those states have spoken at the ballot box. The "rights" of the authorities in the minority opinion may be what the law says, but that was equally true for King George III - legally, the British were always right in the American Revolution: people never have the "right" to rebel and kill the cops. But if you vex them enough and they do it, and they win, well, then the Crown's rights have evaporated, because there is nothing they can do to enforce them. No remedy, no right. There is no remedy to the state defiance of the marijuana laws. Trump may have the political support to punish the sanctuary cities over immigration, because a huge portion of the population, probably the majority of likely voters, want illegal immigration stopped. But the majority of voters in 46 states have decided that marijuana is going to be legal. So which political party is going to try to enforce federal power on the matter over the overwhelming, express desires of the American people? None. Philosophically, the states have no right to legalize, but in practical reality, they do, because they have been able to do so and there is no real remedy. Philosophically, cities have no right to be sanctuary cities, in practical reality they have nevertheless done it, and it's an open question as to whether Trump and the Republicans at the federal or state level are willing to take the political damage they will take if they decide to go King George on the matter. They might assess that they can win that fight, so they will do it. If they assess they can't win it, they won't. And once against, no remedy, no right. The nurse has a remedy for the violation of her rights, so her rights are real and the cop loses. No remedy, no right. If there is a remedy, then there is a right. This is DESCRIPTIVE, not PROSCRIPTIVE. Since all law is nothing more than the opinion of the lawmaker, what I really think is that laws I agree with should be enforced, laws I oppose should be repealed, and that if the political power of one part of government is too strong to repeal them, then if a political method can be found to disregard the law and override it through other means, such as local democratic action, then do so. But where local democratic action is trying to override a law I agree with - example: the racists trying to locally uphold segregation against federal law, then I am more than ready to unleash the Redcoats to go bully the locality into submission, as we did in the civil rights cases. Law is opinion. I'm fond of mine. So, I believe that my opinion should be the Law of the Land. Where it is, I support the authorities in upholding it to the hilt, and using armed force to crush opposition and lawbreaking. But where I disagree with it, then if the political opinion cannot be changed through persuasion, if I don't care enough I will shrug my shoulders and accept the bad law. But if I find the bad law really odious morally - as, I do the historical slavery, Fugitive Slave and segregation laws, also alcohol prohibition - then of course I want to see those laws defied and undermined, and the government put in the position where it has to yield to reality. But if I don't personally care all that much - such as the gay marriage laws, or the drug laws - then I am content to watch passively, will accept whichever outcome prevails politically. I will be watching for what I do care about, and I care about excessive police force. THAT is threatening to me and everybody else. So if the law cannot be upheld without crushing out huge numbers of lives (alcohol and drug prohibition, for example), then I will gradually align against continuing to have the law, because I am unwilling to let the police kill and abuse people just to enforce a law I don't care about. It teaches them bad habits. Law is just human opinion. It is not sacred. It's what people can enforce on other people. If you're looking for blockheaded consistency in law, you can find all sorts of unrealistic pundits all over the place who will fill the bill - people ready to unleash legions of hell on jaywalkers - because "The Law", and people ready to tell people they can do whatever they please on their own property - because "Natural Law". Etc. All of those various rigid, idolatrous forms of law-worship fail in reality, and are not realistic ways to even attempt to run a country or the world. People only really care about the laws they care about. Including me.
So you're saying we need more states to do unconstitutional blood draws and overwhelm the system. Then we can just shrug our shoulders and say, "What can we do?" Can we do the same for Civil Rights laws?
Can we do the same for Civil Rights laws? No, I said the opposite of that. Are you really this obtuse? I am saying that laws are opinions, and that laws are either enforceable, or partially enforceable, or eminently defiable, depending on the democratic will. The people do not want to be abused by cops and the government, or other people, so they hold the civil rights laws to be above the rest of law, at least at it applies to the better classes. The people do want to be able to smoke marijuana and drink alcohol unmolested. So therefore the efforts by a stubborn minority of people to maintain the marijuana laws will sink because the public will be generally lawless in that regard, just as the alcohol prohibition laws did. The Rule of Law as an abstraction is not really important. What is important is the specific laws. The democracy wants to drink, and wants to smoke, and does not want to be abused. So therefore the laws will adjust to that - or they'll just be ignored and drop away. Alcohol prohibition did. Marijuana prohibition is going the same way. The Christian Women's Temperance movement got their law, but the people vetoed it through mass disobedience, and so it was eventually repealed, because the better classes of people got tired of being harassed by the police guard dogs. They struck the law down first by disobeying it, and then through the process of politics. Same thing is happening with marijuana. I am saying that it's stupid to fight the legalization of marijuana. Those fighting it are just as stupid as Governor Wallace was when he stood in the schoolhouse door. He was moved aside, and the black child entered and was taught, his laws were all nullified, integration happened, and he lost. He lost politically, and he lost personally - in this world by being remembered as an ignorant racist, and in the next by the judgment of God. To continue to fight the legalization of marijuana is to join the Light Brigade in order to make their final charge. You see law as law. But that's wooden headed. Law is political opinion. Political opinions that are in the weakening minority are not worth fighting for when they don't make a difference anyway. By contrast, the people don't want to be bullied by the police, which is what attacks on the white professional female hospital staff trying to prevent the cops from committing crimes are. So IF the police decide to do all sorts of attempts at unconstitutional blood draws - they will be engaging in Pickett's charge, they'll be joining the Light Brigade for the Charge. We'll just take them all down like these two cops will go down. Legalize pot and forget about it. Reign in the cops and remind them to keep their place and not go after white professional people over petty pissing contests. Get it out of the cops heads that everybody has to obey their commands. That is not true, and the pretence that the overseers get to bully the masters is going to get a lot of cops dead in prisons learning their place. So cut short the lesson and save lives. America wants pot, so America shall have pot. Give up that fight - you've lost. America doesn't want to be bullied by the cops, and middle and professional class America have the power, the money, the numbers and the influence to make that stick. So rein in the cops and keep them focused on what they're supposed to be doing, which is not assaulting nurses in hospitals.
Then repeal the law. Don't sneak around it, hoping the feds don't have the resources to enforce it.
Can't. The interests are too powerful at the federal level to get it done, and the People don't want to wait anymore. So they do it in the way that is effective and gets the job done for them, and don't care that it messes up the purity of concept of the system. The feds CAN enforce the law, if they want to. But they don't want to. That's where the politics of it settles out. I myself have a great enough appreciation for the rule of law that I would prefer to see all unconstitutional laws wiped from the books, prosecutors and police be prohibited from lying to suspects, and laws enforced until they are repealed. But truth is, the people in various degrees don't want that, and don't care enough about the "rule of law" as an abstract, to put up living with bad laws for a long time. Prohibition was not easily repealable: it was a constitutional amendment! But the majority of Americans didn't vote on it (we don't have plebiscites), and huge numbers of people resented the intrusion on their lives. So rather than try to change the law, they just broke it en masse and did not care. The write H.L. Mencken observed the following in 1925: "Five years of Prohibition have had, at least, this one benign effect: they have completely disposed of all the favorite arguments of the Prohibitionists. None of the great boons and usufructs that were to follow the passage of the Eighteenth Amendment has come to pass. There is not less drunkenness in the Republic, but more. There is not less crime, but more. There is not less insanity, but more. The cost of government is not smaller, but vastly greater. Respect for law has not increased, but diminished." The problem with over-pressing the "rule of law" argument is that the law does not eventually wins, it breaks. People are stronger than the law, and people who are generally law abiding will become lawbreakers if the law gets too far into their business and goes too far. So while I agree in principle that it would be great to follow the rule of law and to change laws rather than break them, I also recognize that some laws are morally odious, or too intrusive, and that the politics of them are such that they need to be overthrown through lawbreaking, rather than obeyed meekly until changed. One that comes to mind is that various laws against interracial marriage. The Lovings of Virginia were in love and decided to get married. That was their right - given by God - the people of Virginia, through their elected officials, never had the right to make interracial marriage illegal, but they did, and that was the law. The Lovings got married, broke the law, were arrested, tried and sentenced to a year in prison. The Supreme Court erased all of the laws against interracial marriage in one fell swoop. The right answer to Virginia's interracial marriage law wasn't to change it. That law had no right to exist in the first place. It was to break it, and thereby force the issue before the Supreme Court, which could then bypass the political process and nullify the law by the decision of five people. It would have taken decades to persuade the legislature of Virginia to stop being evil. The better answer is to erase their law against their will by superior authority and make them lump it. Law is not, in and of itself, an important or holy enough thing to simply be obeyed when it is evil and oppressive. It's better to break it and force the confrontation, bringing the judicial power and other lawmaking - or law erasing - powers into play rather than JUST the legislature. In general, the legislature should make and cancel laws. But legislatures are corrupt, and legisltures can be very racist. When legislatures are too evil to do the right thing - or at any rate the popular thing (as in the case of Prohibition or marijuana) - then other powers need to be brought to bear, including the power of masses of people to just break the law and then politically punish those who would dare to try to enforce it. The purpose of the law is to serve people, not people the law. This isn't Germany.
Nah. I think the people simply don't want to legalize it. "So they do it in the way that is effective and gets the job done for them" Yeah, by referndum. Mob rule. Where a motivated, yet ignorant, minority pass criminal laws affecting everone. If guns were banned by referendum you'd be screaming to high heaven. But since this is an issue you favor, you're willing to look the other way. This is known as the "Rule of Man" rather than the "Rule of Law".
ALL Law, without exception, is the Rule of Man. That whole "Rule of Law" business is, and always was, a lie, a charade. It was a statement by people who were comfortably in power and set the rules and procedures, confident that the rules and procedures they set would keep them and their beliefs in power. They were a rich, slaveholding Virginia elite. Four score and seven years later their grandchildren charged across a field in Pennsylvania under Pickett and died in droves. Their grandparents' dream of establishing an order "of law", which is to say THEIR law, did not last three generations, because too many people opposed it. Too many people opposed it, but the Founders did make it such that it could not be changed through the legal process. So instead we broke the country, had a civil war, erased the laws that could not be changed (and 600,000 of the beating hearts and brains that supported those laws in the process). The "Rule of Law" proved impervious to reform, so we murdered our way out of it - because in the end, there is no such thing as the Rule of Law, only the Rule of Men. When Men get deeply entrenched in power, they start making evil laws. Eventually those laws have to be erased. If the system is too oriented "by law" to preserving those laws, then the system itself has to be destroyed, and its defenders, killed - which is what happens time and again in revolutions all over the world, including the First and Second American Revolutions, of 1776 and 1860, respectively. You identified two subjects: guns and drugs, and asserted that I favor guns and drug legalization. Actually, I am utterly indifferent to gun law - always have been. My personal view of gun nuts and anti-gun nuts is expressed in that word "nuts". The Second Amendment is not really a reset button on the Constitution. It was thought to be when it was made, but it isn't. Guns are also not the cause of violent crime in America: economics and abuse are. Guns are merely an allergen that makes the problems bloodier and starker. Legalize them, ban them - I don't care either way. And therefore I will make a deal with either side, to give them what they want on the matter, in order to advance something I CARE about. I don't care about guns, and I know that gun nuts and anti-gun nuts DO care passionately about them. I care about Social Security (for example). So I will make the carrying of machine guns mandatory for every tot in America if that is necessary to get a deal to protect Social Security. Or I will ban every gun and make their possession a summary death penalty offense, if that is what is necessary to get a deal to protect Social Security. Truth is, though, Social Security is so popular I don't have to concede anything to the nuts on either side of the gun issue, so I don't. I would, if I could get something for my support, but I'm already largely getting what I want out of the government, so there's nothing, really, that the nuts could give me that would make me agree to sign up for either of their nuttiness. In PRINCIPLE, I think that the rule of law should be upheld and people have the right to keep and bear arms. But law is just opinion, and my opinion on this law is one of indifference. So, if you think I'm a gun nut, or an anti-gun nut, you are very much mistaken. On the issue of guns, I am an apathist: I don't care. When it comes to marijuana, I am mildly opposed to its legalization. Smoking things is bad for you. It stinks. It causes cancer. That's just cigarettes. But I wouldn't outlaw those. Pot is bad in those ways, but it also makes you stupid. We've already got plenty of stupid in this society. If I were King, I would not want my people making themselves stupid. But I'm not King, and never will be. And the truth is that the way that law enforcement goes after drugs causes liberties I care about - namely my own privacy - to be subject to invasion. The police are too heavily armed and too aggressive, and there are too many of them, and this is all because of that war on drugs. I don't like drugs. But I like the police presence even less. So, while I would prefer that nobody use drugs, I would rather let people kill themselves with drugs than continue to have an increasingly powerful and aggressive police force. Because of the way that the police enforce the laws against drugs, I have come to see the police forces as more dangerous to myself, and more offensive, than the thought of people I neither know nor really care about killing themselves with drugs. Therefore, I prefer to see drugs legalized, not because I like them, but because the police have become dangerous and disgusting enforcing the law against drugs. People dying of drugs doesn't affect me, but overmighty police do. That said, if the police were reigned in and ratcheted down, I would think that leaving drugs illegal and putting people into treatment to get them off the addiction would be better overall than legalizing them. I'm not going to use them in any case. So no, I don't really favor marijuana legalization, on the case itself. I have been pushed to favoring all drug legalization as the only realistic way to get rid of the overbearing police presence. It's the police who worry me, not the drugs. I don't like Redcoats. If guns were banned by referendum I would say "the people have spoken". If drugs were legalized, or banned, by referendum, I would say "the people have spoken". If segregation were reinstituted by referendum I would say "Send the army back in to make sure that the people who try to enforce segregation are prevented by force from doing so. If slavery were voted back in by referendum, I would ally with North Korea and the Chinese and ISIS to arm the would-be slaves to start mass murdering every official and everybody else who tried to reimpose the chains of slavery, and I would call for the foreign invasion and destruction of the United States to prevent slavery from ever being reimposed. Now THERE is a law that I care about more than I care for the "rule of law" or the survival of the country itself. If you are imposing slavery, then you have lost the right to live, and anybody has the right to kill you on sight. Of course, there is no chance of slavery being reimposed, or racial apartheid, so I don't have to worry about such things. Those things were TAKEN CARE OF already by Civil War, Reconstruction and the imposition of desegregation by force. And I am well pleased that those who fought for slavery died in the hundreds of thousands, and that the earnest democratic desire of certain people to continue racial segregation was kicked in the face by jackboots again and again and again. I have no sympathy or mercy in my heart for slavers or racial segregationists, and am happy to see them and their cities burn. But again, we already handled that. I'm happy with the outcome. In this day and age, there IS no issue of THAT magnitude, so it would be great if we could just get on with the business of structuring things to make as many people as we can reasonably secure and content. All of these passionate lunatic fringe issues, such as guns and drugs, are not really of interest to me. Abortion is of interest to me, because I am a Catholic. But I recognize that to end abortion requires rather massively expanding the social welfare state to accomodate and educate all of those poor babies. I'm willing to do that, but I understand why conservative society balks. And since conservative society balks at that, then there is no practical way to ban abortion and the issue is largely neutralized in my thinking. It were best if every baby were born. That won't happen if there is not adequate economic support for their upbringing. So, I understand that the road to prohibition of abortion lies in strengthening the economic lot of the poor and working and lower middle class. But religious conservatives (except for Catholics) do not understand this, do not accept it, and reject it. Therefore abortion will remain the law of the land, I know it, and I accept that fact with equanimity. Without the social supports, we can't outlaw abortion. And more importantly, we WON'T, because women will never consent to a sentence of enforced poverty, and neither will men. If you want to goad me on my issues, then goad me on my actual ISSUES: the economic support structures of society, abortion, education of children (these are all facets of the same humanitarian issues). Guns and pot? Couldn't care less either way.
#78. To: Vicomte13 (#77)
There is another option like it was done in Massachusetts - to decriminalise weed not to make it legal.
Top • Page Up • Full Thread • Page Down • Bottom/LatestRe aims to throw cold water on the "near-universal outrage" provoked by Wubbels' arrrest and correct "reams of inaccurate reporting on the incident."
#6. To: Vicomte13 (#1)
Every judge will see it that way. Every politician will see it that way. The cops don't have a pot to piss in.
#10. To: Tooconservative (#6)
So that blue line held firm for over a month until the public exploded after seeing the video.
#13. To: Vicomte13 (#10)
Now that it's out there, it crystallizes the zeitgeist. The case law is utterly terrible for the cops. Neo-Confederates care about the states- rights issue concerning Utah law. And they are a sliver of the population. Everybody else knows that the Supreme Court is the law of the land, and what they've said is clear and congenial to the attitudes of most people.
Now, if the police force itself resists, then the hits will keep coming until they have their Appomattox moment. It's so much EASIER for them to claim that Payne was a rogue, unstable ass, publicly crucify him and hang his bloody pelt in the public square as an offering to the public, and then be allowed to return to their usual quiet and secretive ways.
#15. To: Tooconservative (#13)
The police can hardly claim ignorance of the law after two big USSC cases.
#18. To: misterwhite (#15)
hey were FOLLOWING state law. Your retort is that those are old laws that haven't been cleaned up yet. Give me a f**king break.
#20. To: Vicomte13 (#18)
That wasn't my retort.
#28. To: misterwhite (#20)
Maybe. I mean, the defense can certainly bring it up at trial and the judge may or may not agree.
#46. To: Vicomte13 (#28)
The cops don't have the right to take what they have no right to take.
#51. To: misterwhite (#46)
He had the power to take the blood under State of Utah law and police department policy. If the law is outdated or police policies are wrong, that's not his fault.
#53. To: Vicomte13 (#51)
Ignorance of the law - and federal supremacy IS the law - is no excuse.
#65. To: misterwhite (#53)
(Edited)
Meaning that states do not have the right to legalize marijuana for medical or recreational use? Do we agree on that?
#68. To: Vicomte13 (#65)
46 states have legalized medical marijuana and won't enforce the federal law.
#71. To: misterwhite (#68)
So you're saying we need more states to do unconstitutional blood draws and overwhelm the system. Then we can just shrug our shoulders and say, "What can we do?"
#74. To: Vicomte13 (#71)
America wants pot, so America shall have pot. Give up that fight - you've lost.
#75. To: misterwhite (#74)
Then repeal the law. Don't sneak around it, hoping the feds don't have the resources to enforce it.
#76. To: Vicomte13 (#75)
The interests are too powerful at the federal level to get it done, and the People don't want to wait anymore.
#77. To: misterwhite (#76)
(Edited)
If guns were banned by referendum you'd be screaming to high heaven. But since this is an issue you favor, you're willing to look the other way. This is known as the "Rule of Man" rather than the "Rule of Law".
Replies to Comment # 77. Therefore, I prefer to see drugs legalized, not because I like them ...
End Trace Mode for Comment # 77.
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