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Old 05-13-2011, 02:29 PM   #11 (permalink)
Jinn
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It's not safe to assume because of how you're framing the question.

Quote:
and since this has always been a clearly established common law right since 1215, what else did you say or should I safely assume?

the framers of the constitution clearly wrote the 4th Amendment to prevent the government agents from entering private property without a warrant or clearly outlined exigent circumstances, so how is agreeing with this ruling anything but being comfortable with the courts removing rights?
To the extent that you've said "common law" here, I presumed you understood what it meant. Your usage here and in previous posts in this thread seems to reveal a misunderstanding.

As opposed to statutory law and regulatory law, case law and common law are laws and interpretations of statutory and regulatory laws which regulate our society and are inextricably TIED to our social policy and evolve with social needs. Saying that the "right" to "reasonably resist" is a "clearly established common law right since 1215" means you're ignoring every social change and judicial ruling in the intervening 800 years. I'll once again quote the majority opinion, which laid this out for you:

Quote:
In the 1920s, legal scholarship began criticizing the right as valuing individual liberty over physical security of the officers. Hemmens & Levin, supra, at 18. One scholar noted that the common-law right came from a time where ―resistance to an arrest by a peace officer did not involve the serious dangers it does today.‖ Sam B. Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 330 (1942). The Model Penal Code eliminated the right on two grounds: ―(1) the development of alternate remedies for an aggrieved arrestee, and (2) the use of force by the arrestee was likely to result in greater injury to the person without preventing the arrest. Hemmens & Levin, supra, at 23. In response to this criticism, a majority of states have abolished the right via statutes in the 1940s and judicial opinions in the 1960s. Id. at 24–25
But because case and common law *IS* social policy and inextricable from evolving social needs, of course I support the ability of a judicial branch which performs its function, interpreting law in a contemporary framework. I would not want our laws evaluated as contemporary for 1700 - I want them analyzed in the framework of modern America of the 21st century. In fact they must be, and this concept is supported by anyone who believes even vaguely in a balanced government with three divisions and a judicial system of evaluating the executive and legislative.

But you framed the question in such a way as to imply that I support a judicial system which removes immutable protections from the government as established in the Constitution. As I'm sure has been noted before, the Constitution limits the power of the government, rather than "granting" rights. In the case of the Fourth Amendment, it limits only the government from "unreasonable" search and seizure, and the ability to execute same without warrants. Removing the ability to (in most cases) violently resist an attempted police arrest does not undermine the protections of the 4th Amendment. I am far more concerned about case and administrative law that removes the requirement for a warrant, such as warrantless wiretaps, warrantless GPS tracking and warrantless ISP access requests than I am about a precedent regarding your ability to resist an arrest you feel in the heat of the moment is "unlawful".

A fine (and final) point also raised in the majority opinion is that there is a balance of rights here - certainly, the right of a citizen to be protected from police overreach is there, but what of the right of a police officer to their physical security? I cannot condone resistance to arrest (lawful or otherwise) in an environment when so many options for legislative and administrative redress exist, and in an environment where strong law exists to protect the detained, arrested and incarcerated.

From a pragmatic standpoint, as well; you will fare better accepting the unlawful arrest and suing the police department than you will attacking the officer. There's no way around that obvious fact.
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Last edited by Jinn; 05-13-2011 at 02:33 PM..
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