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Old 09-16-2018, 01:08 AM
Jim B. Jim B. is offline
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My Confusion of Doing Away With the Exclusionary Rule.

I will do a search after I post this, to try to add more cites. But I will tell you what I have already heard.

Ever since the Reagan administration, conservatives have been trying to do away with the exclusionary rule. That is the rule the Supreme Court established, that said if evidence is obtained thru an illegal search, it is inadmissible in court.

Makes a lot of sense really. Because that is the only incentive police have not to behave unethically. I realize most police are decent, law-abiding people. But even they have their lapses, I think we can all agree. Which is why we need this rule.

Anyways, a short while ago, the SCOTUS finally got the swing vote it needed to toss out the exclusionary rule altogether. Justice Scalia (God rest his soul), said it was really okay. Because (he said) you can just sue the US govt. in civil court later, to make them held responsible for what they did.

Now my confusion. As I understand it, felons in prison do NOT have the power to sue anyone. And then there is the 11th Amendment to the US Constitution. Sovereign immunity, they call it. Which basically means you can't sue the US government (without their permission they say--but if you read it, it seems to say you can't sue them at all).

So how did Scalia conclude we can just sue, if we are illegally raided by the government?

As I said, I will now do some searches. But if anyone finds cites to what I have said in the meantime, feel free to help me out.

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Old 09-16-2018, 01:14 AM
Jim B. Jim B. is offline
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Here is an interesting article. I will look for some more, and then call it a day.
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Old 09-16-2018, 01:20 AM
Jim B. Jim B. is offline
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I don't think it's the case I (recently) heard of. But this keeps coming up in my searches, for some reason.

I will take a break for now.
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Old 09-16-2018, 01:28 AM
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friedo friedo is offline
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Quote:
Originally Posted by Jim B. View Post

Now my confusion. As I understand it, felons in prison do NOT have the power to sue anyone.
I have no idea where you get that idea. There are thousands of prisoners who practically make a hobby of suing people.

Quote:
And then there is the 11th Amendment to the US Constitution. Sovereign immunity, they call it. Which basically means you can't sue the US government (without their permission they say--but if you read it, it seems to say you can't sue them at all).

So how did Scalia conclude we can just sue, if we are illegally raided by the government?
Sovereign immunity means you can't sue the government unless they give you permission to. The Congress in their wisdom has concluded that people might need to sue the government from time to time to address their grievances, and has passed statutes like the Federal Tort Claims Act and others which say "people can sue the government for XYZ and we promise to abide by the court's rulings."

Last edited by friedo; 09-16-2018 at 01:28 AM.
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Old 09-16-2018, 02:03 AM
Jim B. Jim B. is offline
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Quote:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Fourth Amendment to the US Constitution (emphasis mine)

A couple more things that I couldn't help but bring up (I've been thinking about this topic for some time).

"Supported by oath or affirmation". How much protection does that clause add? I mean, if the officer of the law lies to the judge, he could actually get in a lot of trouble? Couldn't he?

Also, "unreasonable". I don't mean to hijack my own thread. But people who claim we have an implicit right to privacy in the US Constitution. Isn't the fact it says "unreasonable" as opposed to non-legitimate or illegal significant? But please don't let the discussion go awry here. A short reply to this question would suffice. Then let the discussion go back on topic, please.
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Old 09-16-2018, 02:06 AM
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Perjury is a crime, yes.

The definition of "reasonableness" makes up approximately 95% of the past six hundred years of case law.
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Old 09-16-2018, 11:45 AM
DSYoungEsq DSYoungEsq is offline
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With respect, Jim B., where are you getting the idea that there is some significant push on to eliminate the exclusionary rule? Remember: it's been a part of federal jurisprudence for over 100 years now, having been adopted in the case of Weeks v. United States, 232 U.S. 383 (1914). It is certainly true that there are some very "conservative" members of the judiciary who question it, but I'm not aware that there is any legitimate danger (if you will), that it will be overturned.

Also, your reading of the 11th Amendment is wrong. It has nothing to do with suing the federal government. Rather, it insulates states from lawsuits against them by citizens of another state in federal courts. The principle has been extended to include suits against states by citizens of that state, whether in federal or state courts (i.e.: sovereign immunity of the states was not abrogated by the federal constitution). Not sure what any of that has to do with what seems to be the core of your discussion (which I presume focuses upon the decision in Mapp v. Ohio, 367 U.S. 643 (1961)).
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