Those rallying around the Second Amendment seem to ignore the Fourth :: 06/22/2016

Relax, people. Your Second Amendment rights are in no danger of being eroded. But your Fourth Amendment rights? They're as good as gone.

In fact, they've been gone a good while now. The noisiest gun partisans say that the 2nd Amendment is their protection against a government run amok. But if the U.S. Supreme Court continues to shrug and give attaboys to police who stop and search people on a whim, then all that talk about guns protecting us from government overreach is just chatter.

For some time now, the courts have been disturbingly siding with the police against civilians in Fourth Amendment cases. Last year, for example, an appellate court took the side of police who barged into a man's house at 4:30 a.m. and shot him dead when they saw him with a knife inside its sheath. Apparently, that man was supposed to just know that the invaders were the police. Even though the police entered his home in a way designed to confuse and disorient him.

With a 5-3 vote Monday, the U.S. Supreme Court decided that even though a Salt Lake City police officer stopped a pedestrian without any evidence that he'd committed a crime, the drugs he eventually found in a search were admissible as evidence. Why? Because between the stop and the search, the officer ran the man's ID and discovered an outstanding warrant for a traffic violation.

Justice Clarence Thomas says in the majority opinion that the Utah Supreme Court was wrong when it threw out the drug evidence. The officer who stopped the pedestrian outside a suspected drug house "was at most negligent," Thomas writes. That officer is guilty only of "good-faith mistakes." Yes, the officer's "decision to initiate the stop was mistaken," Thomas writes, but "his conduct thereafter was lawful.... Moreover, there is no indication that this unlawful stop was part of any systemic or recurrent police misconduct. To the contrary, all the evidence suggests that the stop was an isolated instance of negligence that occurred in connection with a bona fide investigation of a suspected drug house."

Thomas, you might remember, wrote the majority opinion that took away the almost $20 million coming to a former death-row inmate who was railroaded by Harry Connick's Orleans Parish District Attorney's Office. That exonerated defendant, Thomas wrote, didn't establish that Connick's office had a pattern of similar violations. Scoffing, Justice Ruth Bader Ginsburg wrote that the "conceded, long-concealed prosecutorial transgressions were neither isolated nor atypical."

Monday, it was Justice Sonia Sotomayor scoffing. "Respectfully," she writes in her dissent, "nothing about this case is isolated." There are, Sotomayor writes in her dissent, more than 7.8 million outstanding state and federal warrants out there, "the vast majority of which appear to be for minor offenses." She cites a Department of Justice report finding that of the 21,000 people in Ferguson, Mo., 16,000 had outstanding warrants. She also cites the DOJ's 2011 report about New Orleans. According to that report, in a single year, the New Orleans Police Department "made nearly 60,000 arrests, of which about 20,000 were of people with outstanding traffic or misdemeanor warrants from neighboring parishes for such infractions as unpaid tickets."

If there are places where a majority of folks have outstanding warrants, and the Supreme Court says that an illegal stop can be retroactively justified if outstanding warrants are discovered, then can't police can just roll the dice? In Ferguson, especially, the odds are that a person has a warrant, so why should we expect the police to show restraint? What good is the Fourth Amendment's prohibition against unreasonable searches and seizures?

"This Court has given officers an array of instruments to probe and examine you," Sotomayor writes. "When we condone officers' use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.... This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact."

The defendant in the Utah case is white, but Sotomayor worries that people who aren't white will suffer the most from the court's decision. But her larger point is that no one's immune. Monday's decision tells us all, she writes, "that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged."

Our military is always going to be better armed than our citizenry, so I've never understood gun partisans' claims that they're protecting themselves from the government. I especially don't understand that argument in a country where the Fourth Amendment's being slowly whittled away.

Jarvis DeBerry is deputy opinions editor at NOLA.com | The Times-Picayune. He can be reached at jdeberry@nola.com. Follow him at twitter.com/jarvisdeberry.

http://www.nola.com/crime/index.ssf/2016/06/4th_amendment_court.html