Wednesday, January 22, 2014 | 12 comments

Strengthening Judicial Oversight of Forcible Entry Warrants


To track the status of this bill, find it on our Legislation Tracker.
Click here to contact the sponsor of the bill to share your thoughts, or
click here to email your Senator and Representative about it.

Libertas Institute supports this bill.

Below is the executive summary for our newly released policy analysis, “Police Warrant Reform.” To read the entire report, click here. The resulting legislation is House Bill 70.

According to one estimate, roughly 40,000 SWAT or tactical raids are conducted around the country each year—over 100 per day. In most cases, officers detain the suspects and seize the desired evidence without harm to themselves or those present in the home they entered. But in too many cases, something goes wrong and somebody—in many cases an innocent person—gets hurt, or worse, killed. Utah is not an exception to this trend.

This violent enforcement of the law, primarily relating to drug enforcement, suggests a weakening—if not abandonment—of the restraint that the American legal system was designed to ensure when dealing with warrants.

Prior to the Revolutionary War, agents of the British government used “writs of assistance” to authorize general searches and seizures. This broad targeting of innocent people, and the taking and destruction of their property, played a large role in the brewing opposition to the Crown. As James Otis argued, these writs were “a power that places the liberty of every man in the hands of every petty officer.”

Due to their experience with this abuse of authority, the framers of the Constitution passed the 4th amendment which required a warrant signed by an impartial judge, based upon probable cause, that was specific to a person or property. Accordingly, today we expect judges to serve as a check on the authority of law enforcement officials to ensure that the rights of each citizen are considered and protected.

But what happens if judges don’t “check” this authority when necessary? Are a citizen’s rights fully regarded when the judge and law enforcement officer have a “history” together and therefore are somewhat predisposed to collaborate? How can we be sure that judges around the state are upholding our rights and granting the authority to forcibly enter a person’s home based on a consistent state-wide standard?

To ensure that punishments meted out by judges around the state are equitable, the Utah legislature establishes sentencing guidelines; it would clearly be problematic for a judge to punish a convict with 40 years in prison while another judge imposes a sentence of only one year on another person for the same crime. As with sentencing, we believe it is necessary for the legislature to establish reasonable guidelines for judges when being asked to sign off on a request to forcibly enter a person’s home.

We wish to minimize the risk both to citizens and law enforcement officials, and believe that better judicial oversight—to ensure that forcible entry is occurring only when absolutely necessary, and when the circumstances truly justify its use—will facilitate this important objective.

Click here to continue reading.


9 comments
onlooker
onlooker

Personal liberty is being defrayed all over the world by conventions, rules and laws that give the government (of the people) more and more black letter law.

From this outsider's perspective a lot of it stems from the conflicting values of a society that permits gun ownership for the express purpose of killing or wounding other people.  In my country owning a gun for that purpose is forbidden (and the overwhelming majority are pleased that is the case).

The conflicting values arise when law enforcement peremptorily take or legislate more power than civilians want them to have, and it becomes obvious that "of the people" has gone out the window.

If civilians didn't have the right to own guns for the express purpose of killing or wounding others, such stringent laws or excessive power-taking may not be necessary.

Until then, this monster will continue to feed on itself and grow and grow.

D Christian Harrison
D Christian Harrison

I'm curious if the designation of "night" follows an existing formula (and whence the formula) — and if it does not, how you came to it.

Greg
Greg

Your proposed bill needs more work. Problems:

1. With regard to entering residence (e.g. the invasion of the home of Eric Hill in search of some AWOL soldier) for the purpose of conducting an arrest, there is an already established law, and the proposed bill language is actually weaker! (in your bill there is an "or", while the Supreme Court - see below - stipulates an "and")

The governing law is the U.S. Supreme Court case Payton v. New York that stipulates a two-pronged test for transforming an arrest warrant into a conditional authority to enter a residence. 

"(c) For Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives [the first condition] when there is reason to believe the suspect is within.[the second condition]"

While invading the home of Eric Hill, the police blatantly ignored that ruling, by the way. If they ignore the Supreme Court, what makes you think they will obey the Utah Legislature?


2. There is a huge loophole ("evidence destroyed or secreted") that WILL be used as a rubber stamp for going around the purpose of your bill.


LEX
LEX

We don't own guns for the express purpose of killing or wounding others. And what Utopia do you live in?

Viscers
Viscers

@onlooker  I'm not sure you can really link gun ownership to police brutality and laws. I think if you look around the world, you will see little correlation between harsh laws, police brutality and gun ownership by the populace. 


The absolute worst combination is likely to be a brutal state and no gun ownership by the populace. 

cboyack
cboyack moderator

@D Christian Harrison  (b) explains why the warrant cannot be executed during daylight hours, if the warrant is to be executed at night, which is the time between one hour after sunset on one day and one hour before sunrise on the following day;


We reviewed night-related statutes in other states, and in Utah, and with the staff attorney concluded that this language works best…

onlooker
onlooker

@LEX  Sure you do.  Not the sole purpose, perhaps, but mostly for threatening, wounding or killing as deemed necessary.


I live in Australia.  You should come visit.  It's safe as well as nice.

onlooker
onlooker

@Viscers @onlooker The reason given for police harshness and accepted generally as a cost of keeping the community safe is that the crims are armed and if we don't act strongly we will likely be killed.


Much and all as we don't like it, when the police go into a premises in the place we live they go armed with guns and up to 50 pieces of information about the householders.  Included in that is previous form and known gun & ammo ownership (through licensing records).


On that basis they are accountable for how they act because they cannot claim ignorance as a reason to act harshly where not necessary.


Guns are killing machines and cops and feds claim the right to defend themselves from them (as do Floridians and others).


If tighter governance of civilian ownership of guns were to be in place, greater accountability from enforcement officers could be demanded.


Where meaningless governance is in place, enforcement officers must assume the worst of every situation and act accordingly.


It's all to do with community gun management.@onlooker

D Christian Harrison
D Christian Harrison

@cboyack … interesting. I understood the purpose, but was surprised by the use of the inexact language of "sunset" — which sunset? where? Is it visible sunset or the sunset time set by standards bodies.


Anyway … I look forward seeing how this goes.

Trackbacks

  1. […] the House Judiciary Committee reviewed and discussed House Bill 70, a proposal we’ve been working on for months. Whereas law enforcement officers had been concerned about […]

  2. […] the law (such as the fourth amendment)—and these judges can currently issue warrants, including forcible entry warrants authorizing a home raid against a person’s […]

  3. […] Libertas Institute has published a policy analysis offering more detail regarding the context and implications of this legislative proposal. To read that analysis, click here. […]

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