“My Circuits Gleam”: A Fourth Amendment Query

A legal question for Fourth Amendment lawyers out there:

It’s settled law that if you’re in a Terry stop, you have a duty to comply with the orders of the officer who stops you. Likewise, if you receive a summons or citation from court, you’re obliged to respond. Etc.

But suppose that you (somehow) discover a listening/video device planted or inserted in or on an object that would ordinarily be protected by the Fourth Amendment, e.g, your car, your home, your computer, your phone. You surmise that the device was put there by the government in order to spy on you–but can plausibly assert (whether truthfully or not) that you don’t know for sure who put it there. Are you obliged to “comply” with government surveillance by analogy with a Terry stop? In other words, are you obliged to let government surveillance continue without interference after you’ve discovered that it’s taking place? Or can you destroy or disable an A/V device on the grounds that no officer was present to give you an order to comply with anything?

If you do destroy/disable the device, and the device was there through a procedurally correct search warrant, can you be held criminally liable for undermining the government’s attempt to surveil you? There is, after all, no way for the person under surveillance to know that the surveillance in question had the authority of a warrant.

My potentially archaic terminology of a “listening/video device” conjures up Cold War imagery of “bugs,” but I really mean: any discoverable form of electronic surveillance (e.g., a GPS device that you find attached to your car). The issue overlaps with encryption law, but encryption pre-empts surveillance before it takes place, rather than disabling surveillance that’s currently under way–and I’m thinking about the latter. The issue I have in mind strikes me as slightly more analogous to possession of a radar-detector than to the use of encryption, but that analogy breaks down pretty quickly as well.

Hence the question, as it seems a distinctive sort of case. The issue is not addressed in the very basic criminal procedure textbook I use, Matthew Lippman’s Criminal Procedure: the textbook assumption seems to be that electronic surveillance almost always goes undiscovered by the target. (I own the second edition of the book [2013], not the most recent one.)

Analogous issues may seem to arise for physical surveillance, but I don’t think they do: for the most part, if you’re under physical surveillance out in public space, you’re in plain view: you can act as you please (within the normal limits of the law), and so can the government. In that case, you have the right to go out of plain view, in which case they have the right to search or seize you if they have reasonable suspicion that you’re committing a crime. But that’s just a Terry stop, so it raises no new issues.

I’ve been surveilled twice by drone (by Israeli rather than American authorities). I’ve always wondered what would have happened, legally speaking, if I’d found a way to knock the drone out of commission, and pretend that I had no idea who had sent it. Of course, practically speaking, I kind of know what would have happened.

(Thanks to John Semel for the link to the GPS story above, and for some helpful comments on Facebook. And apologies for the weird spacing. Just a bug in the program, I guess….)

I Can See Clearly Now, the Waffle Grill Is Gone

In another record, a complainant reported that an officer struck him repeatedly with a waffle grill. The investigator accepted the officer’s version of the facts despite conflicting information in his Force Report and subsequent reports. Although the officer’s report documented only that he had used “hands/fists,” he later reported that he inadvertently struck the complainant on the head with a waffle grill in self-defense. Instead of probing this inconsistency, the IA [Internal Affairs] investigator exonerated the officer and noted that the use of force was “reported and filed with complete transparency.”

Investigation of the Newark Police Department, Report of the U.S. Department of Justice Civil Rights Commission and the U.S. Attorney’s Office, District of New Jersey (July 22, 2014), p. 39.

Riesbeck Makes the News

I’m perennially frustrated by the reticence of PoT’s bloggers, especially when motivated by modesty: they never call, they never write. And they rarely if ever toot their own horns. So when they make the news, you have to toot their horns for them. Which I now proceed to do.

As readers here know, Riesbeck the Bashful (as he’s known here) has a new position teaching Latin/Humane Letters and Greek at Tempe Preparatory Academy in Tempe, Arizona. Here’s an announcement to that effect from De Equitibus, the school’s online student publication. (Naturally, since the publication’s name is in Latin, Riesbeck is the only one of us here who knows for sure what it means.)

The announcement not only has a photo of Riesbeck, but all manner of scandalous revelation about his life and career. Among these is his former life as an academic wastrel, his present commitment to a form of pedagogical act-hedonism (“It’s enjoyable watching people learn, which makes me enjoy teaching even more”) and his confession to the eyebrow-raising claim that our spiritual lives should be based on a paganized form of consumerist axiological solipsism (“Dr. Riesbeck says that a Boston terrier is his spirit animal because ‘they are the best dogs and I have one.'”)

So the truth is out at last about our co-blogger. We all had our suspicions, I’m sure.

Seriously, man–congrats.

9/11 + 16: Ten Lessons

I post this every year around 9/11, so here it is again. Highly recommended supplementary reading: Steven Brill’s “Is America Any Safer?” The Atlantic (Sept 2016). Though it isn’t up yet, Chris Sciabarra’s annual 9/11 series is always worth reading and should be up soon.

Given Donald Trump’s recent “plan for Afghanistan,” I thought it might be appropriate at least to link to my 2008 review in Democratiya of Sarah Chayes’s The Punishment Virtue: Inside Afghanistan after the Talibana liberal imperialist’s advocacy of perpetual warfare as the self-evident response to 9/11. Here, in confirmation of what I said in the review, is the latest news from AfghanistanAs a bonus, I’ve cut and pasted  the “response” I got from Sarah Chayes when I sent her the review in 2008, inviting her to respond to it. Draw your own conclusions about the quality of her response, or for that matter, the quality of the recommendations she made in the first place. But hey–the experts know best, right?

We’re just a few days away from the sixteenth anniversary of 9/11. Here are a few of the lessons I’ve learned from the last decade and a half of perpetual warfare. I offer them somewhat dogmatically, as a mere laundry list (mostly) minus examples to illustrate what I’m saying. But I have a feeling that the lessons will ring true enough for many people, and that most readers can supply appropriate examples of their own. Continue reading

Felician University Statement on the Repeal of DACA

Almost all readers were unimpressed with the “Statement of the Faculty of Felician University” that I posted here in January, responding to the election and inauguration of Donald Trump. I’m happy to report that Felician’s president, Anne Prisco, has released a statement that takes a much stronger and more substantive position on the repeal of the Deferred Action for Childhood Arrival (DACA) program. I’ve excerpted it below the fold. I’m grateful for it.

I can’t help remembering the “proseminars on pedagogy” I attended back in grad school, intended to prepare us for the ups and downs of college-level teaching. Oddly enough, I don’t ever remembering anyone’s covering “what to do when the federal authorities come in force to campus, invade your classroom, and seize your students as a preliminary to deportation.” But hey–the great thing about this job is that it forces you to learn new things. What I’ve learned is a twist on the old cliche that “life is a journey”: for some of us, it promises to be a journey from the classroom to a prison cell, and from there to a permanent exile from the country of one’s birth.

To be honest, if such deportations are to take place at all, I prefer that they take place on campus. Better collectively to have to bear witness to them than to have the luxury of pretending that they aren’t happening.

Continue reading

The obviously obvious obvious.

Seen on Facebook:

Wasn’t John Brown ‘antifa’? Who today would object to his actions?

Here’s the reasoning as I understand it. Obviously, John Brown was cool. But John Brown was like antifas, and antifas are like John Brown. Therefore antifas are cool. QED. It’s obvious. Obviously obvious. Who would even think of denying it? Except racists, I mean?

Here is Wikipedia on the Pottawatomie massacre, one of John Brown’s ‘actions’:

Some time after dark, the party left their place of hiding and proceeded on their “secret expedition”. Late in the evening, they called at the house of James P. Doyle and ordered him and his two adult sons, William and Drury to go with them as prisoners. (Doyle’s 16-year-old son, John, who was not a member of the pro-slavery Law and Order Party, was spared after his mother pleaded for his life.) The three men were escorted by their captors out into the darkness, where Owen Brown and one of his brothers killed them with broadswords. John Brown, Sr. did not participate in the stabbing but fired a shot into the head of the fallen James Doyle to ensure he was dead.

Brown and his band then went to the house of Allen Wilkinson and ordered him out. He was slashed and stabbed to death by Henry Thompson and Theodore Winer, possibly with help from Brown’s sons.[6] From there, they crossed the Pottawatomie, and some time after midnight, forced their way into the cabin of James Harris at swordpoint. Harris had three house guests: John S. Wightman, Jerome Glanville, and William Sherman, the brother of Henry Sherman (“Dutch Henry”), a militant pro-slavery activist. Glanville and Harris were taken outside for interrogation and asked whether they had threatened Free State settlers, aided Border Ruffians from Missouri, or participated in the sack of Lawrence. Satisfied with their answers, Brown’s men let Glanville and Harris return to the cabin. William Sherman was led to the edge of the creek and hacked to death with the swords by Winer, Thompson, and Brown’s sons.

Who today would object to those actions? Except a racist, I mean? C’mon, people, let’s go punch some nazis.

(Warning: Irony)

Reason Papers 39:1 (Summer 2017) out

I’m pleased to report that the latest issue of Reason Papers, vol. 39:1 (Summer 2017), is now out. Individual articles can be accessed through the Archives link by scrolling down to the issue. Alternatively, the full issue can be accessed through this link, which takes you to a 152 page PDF.

The issue begins with a symposium on Douglas Den Uyl and Douglas Rasmussen’s recent book The Perfectionist Turn: From Metanorms to Metaethics (Edinburgh, 2016), with commentaries by Elaine Sternberg (University of Buckingham), Neera Badhwar (George Mason), and David McPherson (Creighton), and a response by Den Uyl and Rasmussen. If you’re into (or interested in) neo-Aristotelian libertarianism–and who isn’t?–this is the symposium for you.

The issue then proceeds to a discussion of Stephen Kershnar’s Gratitude toward Veterans: Why Americans Should Not Be Very Grateful to Veterans (Lexington, 2014), with commentaries by Michael Robillard (Oxford) and Pauline Shanks Kaurin (Pacific Lutheran), along with a response by Kershnar. If you thought my criticisms of Khizr Khan here at PoT were annoying, I’m sure you’ll love Kershnar’s book and this symposium even more. Just in time for the 16th anniversary of 9/11 and talk of an American troop surge in Afghanistan…. Continue reading

“All Right, Very Bad Weather”

George Reisman, Objectivist economist, on “The Alleged Threat of ‘Global Warming,'” from his 1998 book, Capitalism: A Treatise on Economics (“A complete and integrated understanding of the nature and value of human economic life”):

Currently, the leading claim of the environmentalists is that of ‘global warming’. It is alleged that man’s economic activities, above all the burning of fossil fuels, are increasing the amount of carbon dioxide in the atmosphere. This will supposedly raise the average mean temperature of the world by several degrees over the next century and will cause a rise in sea levels because of melting ice. …

Perhaps of even greater significance is the continuous and profound distrust of science and technology that the environmental movement displays…The one thing, the environmental movement holds, that science and technology can do so well that we are entitled to have unlimited confidence in them is forecast the weather–for the next hundred years!

It is, after all, supposedly on the basis of a weather forecast that we are being asked to abandon the Industrial Revolution or, as it is euphemistically put, “to radically and profoundly change the way in which we live”–to our enormous material detriment. …

The meaning of this insanity is that industrial civilization is to be wrecked because this is what must be done to avoid bad weather. All right, very bad weather. …

Indeed, it would probably turn out that if the necessary adjustments were allowed to be made, global warming, if it actually came, would prove highly beneficial to mankind on net balance. (pp. 87-89, all emphases in original).

Continue reading

CFP: 11th Annual Felician Ethics Conference (last call, note revised due date)

The Felician Institute for Ethics and Public Affairs invites papers for its Eleventh Annual Conference, to be held Saturday, October 14, 2017 at Felician University’s Rutherford campus, 227 Montross Ave., Rutherford, New Jersey 07070.

Submissions can be on any topic in moral or political philosophy broadly construed, not exceeding 25 minutes’ reading time (approximately 3000 words). Please send submissions in format suitable for blind review to <felicianethicsconference at gmail dot com> by August 25  September 1. Acceptances will be announced by September 11.

The plenary speaker will be Michele Moody-Adams, Joseph Straus Professor of Political Philosophy and Legal Theory at Columbia University: Continue reading

Covering Jerusalem: A response to Jacques Delacroix

I’d been thinking of writing some free-standing posts on the aftermath of the shooting two weeks ago at Al Aqsa Mosque in Jerusalem (July 14), but haven’t gotten the chance. Meanwhile, here’s a long response I wrote at Notes on Liberty to Jacques Delacroix’s post, “A short note on the riots in Jerusalem.” Scroll down for my comments.

As some of you may know, I spent most of the month of July in Jerusalem and vicinity, and spent a fair bit of time observing the events in question. It’s notable that for Americans, “what happened” can be reduced to a shooting on July 14, an Israeli decision to put metal detectors at the entrance to Al Aqsa Mosque, and rioting by Palestinians. Suffice it to say that in this as in so many matters, there is a large gap between what Americans end up hearing about Israel and Palestine and what actually happens there. But that’s a longer story than I can tell at the moment.

Postscript, August 8, 2017: The discussion continues here.