Friday, December 19, 2014

necropolitics: move out the way so I can see these honest and reasonable men and their unicorns...,


theatlantic |  Justice Elena Kagan, joined by Justice Ruth Bader Ginsburg, wrote separately to attempt to limit the effect of the decision. It’s not a question of whether he actually knew the law, but of whether the law was really clear to everybody, she wrote. “If the statute is genuinely ambiguous, such that overturning the officer’s judgment requires hard interpretive work, then the officer has made a reasonable mistake,” she wrote. “But if not, not.” All very well, but I can’t help concluding that Heien makes it easier for police to find a reason to stop anyone they think looks suspicious. And we as a society are learning some very hard lessons about what can go wrong with police stops. Roberts’s opinion takes not the slightest notice of the events of the past year. The world he describes is a kind of happy valley were police are polite, citizens know their rights, consent to search is always freely given, and only evildoers feel dread when they see a blue light in the rear-view mirror. “[R]easonable men make mistakes of law,” as well as of fact, he says.

If only we all lived in the Chief’s empire of reason, and drove on his celestial streets! Those of us in the sublunary world, however, traverse streets where fear, not reason, is often the currency. Justice Sonia Sotomayor, in a solo dissent, protested that the decision “means further eroding the Fourth Amendment’s protection of civil liberties in a context where that protection has already been worn down.” She pointed out that “[g]iving officers license to effect seizures so long as they can attach to their reasonable view of the facts some reasonable legal interpretation (or misinterpretation) that suggests a law has been violated significantly expands [their] authority.” And setting out a standard that permits stops based on “reasonable” errors but not on “unreasonable ones,” she argued, further confuses the world of criminal procedure. Even a citizen who knows the law and conforms to it may be subject to police seizure of the officer “reasonably” misunderstands that same law. The Court’s new standard, she wrote, “will prove murky in application.”