Justin Amash on justice (1 Viewer)

"We live in a world in which everything has been criminalized. And some professors have even opined that there's not an American alive who hasn't committed a felony in some—under some state law" - Justice Gorsuch

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In 2019, the California Court of Appeal, 1st Appellate District, ruled that a police officer may always enter a suspect's home without a warrant if the officer is in pursuit of the suspect and has probable cause to believe that the suspect has committed a misdemeanor. This week, the U.S. Supreme Court considered whether that ruling should be overturned.

Justice Neil Gorsuch seemed to have a problem with the lower court's decision. Under the common law, Gorsuch pointed out during oral arguments in Lange v. California, the police did not "have the power to enter the home in pursuit of any and all misdemeanor crimes." The framers of the Fourth Amendment built on that common law understanding. So "why would we create a rule that is less protective than what everyone understands to be the case of the Fourth Amendment as original matter?"

Gorsuch also seemed to have a problem with California's argument that an officer in pursuit of a suspected felon should always be able to follow that suspect into the home without a warrant. It is "settled," argued California Deputy Solicitor General Samuel Harbourt, "that officers may enter a home without a warrant if they have probable cause to believe a fleeing suspect has committed a felony."

Gorsuch offered a different view. "We live in a world in which everything has been criminalized. And some professors have even opined that there's not an American alive who hasn't committed a felony in some—under some state law," Gorsuch told the state's lawyer. "And in a world like that, why doesn't it make sense to retreat back to the original meaning of the Fourth Amendment, which I'm going to oversimplify, but generally says that you get to go into a home without a warrant if the officer sees a violent action or something that's likely to lead to imminent violence….Why isn't that the right approach?"

In other words, since plenty of felonies do not involve violence, why should the police get to categorically evade the Fourth Amendment in such non-violent felony pursuit cases?

Because the common law allowed the police to pursue felons into the home, Harbourt argued in reply.

But "what qualified as a felony at common law," Gorsuch countered, "were very few crimes and they were all punished by the death penalty usually." By contrast, Gorsuch stressed, "today pretty much anything or everything can be called a felony."

In short, under Gorsuch's view, the Fourth Amendment's warrant requirement would only be waived in such cases if the police were pursuing someone suspected of committing a genuinely violent or dangerous crime, a category that necessarily excludes a great many suspected misdemeanants and felons. If adopted by the Supreme Court, that approach would limit police power in these sorts of cases.

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IvanKaramazov said:

Amash obviously isn't talking about abolishing laws against murder, bank robbery, fraud, etc.  Those things are all against the law for good reason.  Specifically, if I slug somebody in the jaw, I'm harming them (although probably not very much).  And just as importantly, I know I'm harming them and that what I'm doing is wrong -- all of us have a built-in moral intuition that tells us that we shouldn't go around punching people.  Those are good laws.  All of us who are libertarians, as opposed to anarchists, think that laws like that are great and the state should enforce them.

We have a ton of laws that don't work like that.  

In some cases, they're laws that criminalize things that shouldn't be criminalized in the first place.  For example, in Indiana it's still a criminal offense to posses any amount of marijuana.  In theory, a kid busted with a joint could get up to a year in year, which is insane.  Now, obviously, the typical (white) Hoosier kid who gets caught with a little pot doesn't go to jail, but the fact that such a harsh sentence is hanging over a person's head for committing a harmless offense against an irrational law gives police and prosecutors a lot of power for no particularly well-intentioned reason.

Then you have a whole edifice of laws that exist for the purpose of making it easier to prosecute people who you think might be breaking some other law.  For example, say I'm recreational poker player who values his privacy.  I don't want to keep my poker winnings under my mattress, so I deposit them in my bank, like a normal person would.  But I know that if I deposit $10K or more at a time, the bank will report that transaction to the federal government, and I don't want that because I don't think it's the government's business to keep track of every little thing that I do.  So instead of depositing my winnings all at once, I make smaller deposits of $7K-$8K each.  I am now a felon who faces up to five years in federal prison because I deposited my winnings in batches that were too small.

It's probably not a coincidence that the war on drugs and war on terror both generated a bunch of these types of "crimes."  They don't harm anybody and they're not even remotely intuitive, but they sure give prosecutors a lot of power. 

And then you have a whole assortment of more or less random things that are illegal and (in theory) harshly punished.  My go-to example for this sort of thing is the federal crime of picking a feather up off the ground.  But there are lots of other examples out there.  Without knowing the specific context of Gorsuch's remarks, my guess is that he was probably talking about this sort of stuff, although Gorsuch seems to be pretty good on this issue all around.  

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