Posted on 05/15/2011 11:36:35 AM PDT by John Semmens
You are free to take any course of action you want, but if you do, you must face the consequences.
You can defend your property with deadly physical force at any time you wish if you believe a warrant is defective, or a warrantless search not legal, and LEOs can, as they always have been able to, shoot you if you do.
Also, look at the limitation in the real world.
A few years ago, a tip and a NEST search led to a belief that Islamic terrorists were in a NYC hotel room. The NEST readings gave a strong indication that the terrs had a fissionable weapon in the room with them. Feds got a no-knock warrant for the room. No evacuation was done. because they would have had to evacuate a 3 mile circle, and that certainly would have tipped the reported terrs.
FBI HRT hit the room at 3:30 AM. Clinton was in sit room under WH. Dry hole. No one ever determined where the slight trace radiation came from.
The intel brief was that if they found anything in the room, the HRT had less than 15 seconds to completely neutralize, as terrs could have set it off in 20 seconds from deep sleep.
Do we really want to give them the right to "discuss" the legality of the warrant for 5 minutes?
Personally, I'd rather strongly argue my point with the Court in morning, rather than die for it the prior evening.
That's what the court decides in the sober light of day, not some beer-swilling perp or terrorist at 3:00 Am.
The law is far from new, and like life itself, is not perfect, but it’s better than dead cops and homeowners.... and there are a lot more legal searches than home invasions.
BTW, little LEO secret: About 80% of home invasions are one drug gang stealing/shooting up another.
You always seem to quote the dissenters in a case, the losers.
Sort of the story of your life... isn’t it!
State, County and City unions want 24/7 access to my home.
White House insiders, who wish to remain anonymous, say that turf battles are brewing between the Secretary of Defense and the Secretary of Housing and Urban Development over who has authority over these new government sites.
This recent development is throwing a wrench in the established "bedroom" privacy rights found by the United States Supreme Court. Experts argue that, if private homes are now federal billets for soldiers in the War du Jour, then "alternate lifestyle" rulings that were based on the privacy of the bedroom are now in question.
< more below the fold >
-PJ
Sometimes. Life isn’t a game though. Not measured by losers and winners.
The English common-law right to resist unlawful police action existed for over three hundred years, and some scholars trace its origin to the Magna Carta in 1215.
Then you cited 20th century case law to justify the abrogation of this long held common law right.
Do you think the court can legtimately overrule a common law right... YES or NO?
are you for real?
what the hell is that stupidass example of yours? this decision was about a man, mad and yelling at his wife you idiot.
take your atomic weapons idiocy and stick it.
In Common Law, a gentleman had the right to demand a duel if he or his lady's honor was besmirched.
It was called “Trial by Mortal Combat.”
In addition, indentured servitude was legal, as were all sorts of capital punishments for what we today consider minor crimes.
You want those rules back?
If you grant any person whose premises is about to be entered the legal privilege to hold LEOs at bay, or repel them by physical force, you grant that privilege to any and all whose premises is about to be entered.
Since the 1920s, courts have realized that is better to give the homeowner redress in the courts, in the cold sober light of day, than it is to try to decide at 3:00 AM if entry is permitted, regardless of whether the LEOs are searching for WMDs, or just trying to stop a man from hitting is wife.
Common law is more malleable than statutory law. First, common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy. Second, the common law evolves through a series of gradual steps, that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects.
In contrast to common law incrementalism, the legislative process is very difficult to get started, as legislatures tend to delay action until a situation is totally intolerable. For these reasons, legislative changes tend to be large, jarring and disruptive (sometimes positively, sometimes negatively, and sometimes with unintended consequences).
One example of the gradual change that typifies the common law is the gradual change in liability for negligence. For example, the traditional common law rule through most of the 19th century was that a plaintiff could not recover for a defendant's negligent production or distribution of a harmful instrumentality unless the two were in privity of contract. Thus, only the immediate purchaser could recover for a product defect, and if a part was built up out of parts from parts manufacturers, the ultimate buyer could not recover for injury caused by a defect in the part. Winterbottom v. Wright, 10 M&W 109, 152 Eng.Rep. 402, 1842 WL 5519 (Exchequer of pleas 1842). In Winterbottom, the postal service had contracted with Wright to maintain its coaches. Winterbottom was a driver for the post. When the coach failed and injured Winterbottom, he sued Wright. The Winterbottom court recognized that there would be “absurd and outrageous consequences” if an injured person could sue any person peripherally involved, and knew it had to draw a line somewhere, a limit on the causal connection between the negligent conduct and the injury. The court looked to the contractual relationships, and held that liability would only flow as far as the person in immediate contract (”privity”) with the negligent party.
A first exception to this rule arose in Thomas v. Winchester, 6 N.Y. 397 (N.Y. 1852), which held that mislabeling a poison as an innocuous herb, and then selling the mislabeled poison through a dealer who would be expected to resell it, put “human life in imminent danger.” Thomas used this as a reason to create an exception to the “privity” rule. In Statler v. Ray Mfg. Co., 195 N.Y. 478, 480 (N.Y. 1909) held that a coffee urn manufacturer was liable to a person injured when the urn exploded, because the urn “was of such a character inherently that, when applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed.”
Yet the privity rule survived. In Cadillac Motor Car Co. v. Johnson, 221 F. 801 (2nd Cir. 1915) (decided by the federal appeals court for New York and several neighboring states), the court held that a car owner could not recover for injuries from a defective wheel, when the automobile owner had a contract only with the automobile dealer and not with the manufacturer, even though there was “no question that the wheel was made of dead and ‘dozy‘ wood, quite insufficient for its purposes.” The Cadillac court was willing to acknowledge that the case law supported exceptions for “an article dangerous in its nature or likely to become so in the course of the ordinary usage to be contemplated by the vendor.” However, held the Cadillac court, “one who manufactures articles dangerous only if defectively made, or installed, e.g., tables, chairs, pictures or mirrors hung on the walls, carriages, automobiles, and so on, is not liable to third parties for injuries caused by them, except in case of willful injury or fraud,”
Finally, in the famous case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (N.Y. 1916), Judge Benjamin Cardozo pulled a broader principle out of these predecessor cases. The facts were almost identical to Cadillac a year earlier: a wheel from a wheel manufacturer was sold to Buick, to a dealer, to MacPherson, and the wheel failed, injuring MacPherson. Judge Cardozo held:
It may be that Statler v. Ray Mfg. Co. have extended the rule of Thomas v. Winchester. If so, this court is committed to the extension. The defendant argues that things imminently dangerous to life are poisons, explosives, deadly weapons—things whose normal function it is to injure or destroy. But whatever the rule in Thomas v. Winchester may once have been, it has no longer that restricted meaning. A scaffold (Devlin v. Smith, supra) is not inherently a destructive instrument. It becomes destructive only if imperfectly constructed. A large coffee urn (Statler v. Ray Mfg. Co., supra) may have within itself, if negligently made, the potency of danger, yet no one thinks of it as an implement whose normal function is destruction. What is true of the coffee urn is equally true of bottles of aerated water (Torgeson v. Schultz, 192 N. Y. 156). We have mentioned only cases in this court. But the rule has received a like extension in our courts of intermediate appeal. In Burke v. Ireland (26 App. Div. 487), in an opinion by CULLEN, J., it was applied to a builder who constructed a defective building; in Kahner v. Otis Elevator Co. (96 App. Div. 169) to the manufacturer of an elevator; in Davies v. Pelham Hod Elevating Co. (65 Hun, 573; affirmed in this court without opinion, 146 N. Y. 363) to a contractor who furnished a defective rope with knowledge of the purpose for which the rope was to be used. We are not required at this time either to approve or to disapprove the application of the rule that was made in these cases. It is enough that they help to characterize the trend of judicial thought.
We hold, then, that the principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. ... There must be knowledge of a danger, not merely possible, but probable.
Note that Cardozo's new “rule” exists in no prior case, but is inferrable as a synthesis of the “thing of danger” principle stated in them, merely extending it to “foreseeable danger” even if “the purposes for which it was designed” were not themselves “a source of great danger.” MacPherson takes some care to present itself as foreseeable progression, not a wild departure. Note that Judge Cardozo continues to adhere to the original principle of Winterbottom, that “absurd and outrageous consequences” must be avoided, and he does so by drawing a new line in the last sentence quoted above: “There must be knowledge of a danger, not merely possible, but probable.” But while adhering to the underlying principle that some boundary is necessary, MacPherson overruled the prior common law by rendering the formerly dominant factor in the boundary, that is, the privity formality arising out of a contractual relationship between persons, totally irrelevant. Rather, the most important factor in the boundary would be the nature of the thing sold and the foreseeable uses that downstream purchasers would make of the thing.
This illustrates two crucial principles that are often not well understood by non-lawyers. (a) The law evolves, this evolution is in the hands of judges, and judges have “made law” for hundreds of years. (b) The reasons given for a decision are often more important in the long run than the outcome in a particular case. This is the reason that judicial opinions are usually quite long, and give rationales and policies that can be balanced with judgment in future cases, rather than the bright-line rules usually embodied in statutes.
Just a little light reading.........
Or is your answer, "No, a court may not legitimately revoke a long held common law right"?
You said courts in the 20th have revoked that right. You also said you support this IN Supreme Court ruling.
So you must believe that courts can legitimately nullify long recognized common law rights.
Why are you so reluctant to say this obvious truth out loud?
The real question is law is whether they can reverse Common law “precedent,” which they do all the time.
For example, the US Declaration of Independence reversed long-standing Common Law regarding the rights of Sovereigns.
Problem with that?
The real villain here is the idiot far-left author of the newspaper article who claimed this ruling changes 800 years of Common Law.
It does not.
SCOTUS spoke to this same issue in 1959 in Frank v. Maryland.
So much for “changing 800 years of Common Law.”
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
Until its passage, slavery was legal under Common Law in much of the US. Is it OK with you that this amendment, upheld by the courts, reversed the Common Law “right” to own slaves?
I understand. I agree.
All I’m asking is that if LEOs are in the wrong forcing their way into my home then “afterwards”, the next morning, week or next year, I can face no consequences for my actions, from minimal action to maximum action, opposing their entry. If I live through my “opposition that is.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.