The idle musings of a former military man, former computer geek, medically retired pastor and now full-time writer. Contents guaranteed to offend the politically correct and anal-retentive from time to time. My approach to life is that it should be taken with a large helping of laughter, and sufficient firepower to keep it tamed!
Monday, February 17, 2014
I need a legal citation, please
I need some help from the lawyers and legal-minded readers out there.
I understand the Supreme Court has ruled on more than one occasion that to exercise a constitutional right is not, in itself, grounds for suspicion. For example, if someone wants to buy a gun, and they're asked all sorts of intrusive questions by local law enforcement (probably acting on instructions from NICS) about why they want it, that's out of line. They're legally entitled to buy it, so why the questions?
Unfortunately, law enforcement is often notoriously heavy-handed in cases like this. I want to help the person concerned (one of my students) by being able to cite that Supreme Court ruling. (If there are other rulings along the same lines, either from lower levels of federal courts or from state courts, those would be useful, too.)
If you can help, please leave a comment with that information. Thanks!
Peter
Peter, this may have the info you are asking for.
ReplyDeletehttp://www.law.cornell.edu/supct/search/display.html?terms=firearms&url=/supct/html/95-1478.ZS.html
Don't forget to include applicable state law. Some states do not have in their own constitutions a right to keeps arms, thus legislators are free to restrict their possession to absurd levels.
ReplyDeleteNothing bars anyone from asking questions. But nothing requires that those questions be answered, either. It only rises to the level of a problem when the refusal to answer such questions becomes a bar to going forward with buying a gun or whatever else one wants to do, in which case I'd insist on something in writing stating that I was being denied my rights and stating both the reason and the name/title of the person making that decision. Usually by then, even the dimmest apparatchik can see the freight train coming and they get off the track, quick.
ReplyDeleteNot much I know but these may be useful starting points:
ReplyDeleteMiranda v. Arizona, 384 U.S. 426, 491; 86 S. Ct. 1603
"Where rights secured by the Constitution are involved, there can be no 'rule making' or legislation which would abrogate them."
Sherar v. Cullen, 481 F. 2d 946 (1973)
"There can be no sanction or penalty imposed upon one because of his exercise of constitutional rights."
Simmons v. United States, 390 U.S. 377 (1968)
"The claim and exercise of a Constitution right cannot be converted into a crime"... "a denial of them would be a denial of due process of law".
PS, I meant to send you an email with some pics of Narsarsuaq, as a follow up to your earlier post, however, I got befuddled and sent the missive to Borepatch who thanked me for the interesting but rather unexpected email....at which point I realised my error and then that I don't have your email....or other vehicle to send said email to you. If you are so inclined, cspratt@spsu.edu is a good contact.
Differ, that's it! Those are the citations I needed - confirming that exercising a constitutional right is not, in and of itself, grounds for suspicion (or action). Thanks a ton!
ReplyDeleteYou might also find this one interesting:
ReplyDeletehttp://www.fedagent.com/columns/case-law-updates/784-fourth-circuit-finds-that-carrying-a-firearm-in-an-open-carry-state-does-not-create-reasonable-suspicion-and-provides-thorough-analysis-of-the-free-to-leave-standard-of-seizure
Some highlights:
“[a] lthough brief encounters between police and citizens require no objective justification . . . it is clearly established that an investigatory detention of a citizen by an officer must be supported by reasonable articulable suspicion that the individual is engaged in criminal activity.” Terry v. Ohio, 392 U.S. 1, 21 (1968). Furthermore, “[a] person is ‘seized’ within the meaning of the Fourth Amendment if, ‘in view of all [of] the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’” United States v. Mendenhall, 446 U.S. 544, 554 (1980).
“[t]o be lawful, a Terry stop ‘must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity.’ Reid v. Georgia, 448 U.S. 438, 440 (1980). The level of suspicion must be a ‘particularized and objective basis for suspecting the particular person stopped of criminal activity.’ United States v. Griffin, 589 F.3d 148, 152 (4th Cir. 2009). As such, ‘the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ Terry, 392 U.S. at 21.”
the Supreme Court has ‘consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.’