Gonzalez Family's 4th Amendment Rights

Getting closer to the original topic.

The agents took a blanket from the house, throwing it over Elian as they whisked him away. If that blanket wasn’t listed on the warrant as something to be removed from the house, would that be theft, an unreasonable seizure?

One more time…

The unreasonable here means that they don’t have a REASON to do the search, not that their actions during the search were improper. These people were breaking the law by not complying with a court order from a week and a half ago. The negotiators were told by the relatives that the relatives would not give the kid up. They had every right to take the child.


“The large print givith, and the small print taketh away.”
Tom Waites, “Step Right Up”

JODIH: You say the “tempoary legal cusodian” thing ended over 10 days ago, when the INS ordered the boy returned. As the 11th Circuit was still referring to the Uncle as
“temporary legal custodian” in their decision, handed down 2 days prior to the raid, I am afraid that the decision of the 2nd highest Court in the USA still stood. If you read the dec, apparently they were considering Lazaro TLC as Elian had been placed w/ him (by the INS), and his TLC would continue as long as he had physical custody of the child, which he had at the time of the raid. Oh, and all you aimchair lawyers are reading the statute wrong, still.

RE “court orders”:Bantmof was refering to a “court order” that ordered Elian back to his dad. No court has issued such an order. Getting one, then having the Miami relatives held in contemp @ $10000/day would have been a non-violent way of ending the standoff. RE search warrants: The INS does not need a searh warrant in certain cases. I do not know if this is one. In any case, the media footage & coverage did not mention a warrant.

ELLIS: “conspiracy theories”? show me where I have spouted a conspiracy theory.

Folks, I personally think that Elain’s proper place may well be with his father. However, I have great trust in the US courts, and believe, as does the 11th Circiut, that Elian deserves his day in court. None of us has seen all the evidence. True, Elian will be treated as a hero back in Cuba, but only as long as he says Cuba is a nice place to live and the USA is a cesspool. Saying otherwise is a crime in Cuba. So, let us let the Courts do their job, consider ALL the evidence, without all the emotion, and make the RIGHT decision for Elian, whatever that is.

ELLIS: please tell me where I have spouted off any “conspiacy theories”.

Go ahead I’m waiting.

Still waiting…

Your son comes to a sleepovefr at my house. You’re a little late in picking him up. When you get here, I tell you that I’m keeping the boy because I don’t think you’ll be as good a father to him as me. You tell me this is unacceptable, I tell you that he’s in my house and that’s the way it is now.

Anyone not think I’m kidnapping?
Anyone not going to get the cops to break in?
Anyone not going to want the cops armed?
Anyone going to let me see your kid again or establish joint custody?
Anyone not think that I’m an evil bastard who should go to jail for all of this?

Lorenzo Bucky

The right of the people shall NOT be violated. What’s so hard to understand?

Sorry, bad post.

The right of the people to be secure in their houses shall NOT be violated. That’s what it says, period. Justify all you want, but that’s what the Constitution says.

MILROYJ – Stay with me here. Right to do what? To be free from . . . from what? Class? Class? That’s correct. UNREASONABLE searches and seizures. That is ALL you have a right to be free from. If the search is a REASONABLE one, you have no right to be free from it. None. You are correct; this is not very hard at all, which makes me wonder why you are having such trouble getting it.

DANIEL – You say:

I’m afraid you are confused on a number of levels. The Eleventh Circuit can refer to Lazaro Gonzales as whatever they want; they can call him the Leader of the Free World, and that will not make it so. The Eleventh Circuit, like every other appellate court, only has jurisdiction to determine issues properly before it – in this case, the propriety of ordering Elian to stay in the States until a decision is made regarding whether he can apply for asylum or not. Their decision had nothing – NOTHING – to do with the issue of who had legal custody of him. They properly did not consider that issue, as it was not properly before them. You can point to the decision all you want, but the fact is that it in no way justifies the Gonzaleses refusal to turn Elian over to his father, and in no way questions the INS’s authority to order that transfer of custody.

I HAVE read the decision, and it does not say this. It does not say “Lazaro has legal custody so long as he physical custody.” AT the time, Lazaro did, in fact and obviously, have actual physical custody of the child. A holding that physical custody was tantamount to legal custody would have served to vest him with legal custody and cut off the government’s right to demand the boy’s return. The decision did not do this, and if YOU have read it, in it’s entirety, and think that it does, then you have read it wrong, and wildly wrong at that.

I AM an “armchair” lawyer. I’m also a “walking down the street” lawyer, an “eating at Pizza Hut for lunch today” lawyer, and a “going out of town to for trial tomorrow” lawyer. And I have been since I graduated from law school and was admitted to the Bar six years ago. So you’ll forgive me if I don’t take your word for it on the issue of whether I have misread the statute, your service on a grand jury notwithstanding.


Jodi

Fiat Justitia

Danny: Ellis was mistakenly ascribing to you a view held and propounded by millroyj, that the picture of Elian with his father was doctored or faked. I’m sure Ellis is very sorry at the confusion.

By the way, let me ask you a multi-part question:

  1. Do you think Juan Miguel Gonzalez is a fit father for his son?

  2. Do you think Mr. Gonzalez’s nationality precludes him from raising his son well?

  3. Do you think Elian’s extended family is more capable of raising him than his father, given that they live in a democratic society yet have, arguably, a lower standard of living than Juan Miguel Gonzalez?

  4. Do you think it is appropriate to withhold a son from his only surviving parent when there is no evidence of parental abuse?

  5. Do you think Mr. Gonzalez’s nationality should preclude him from assuming custody of his child?

  6. Do you think it’s possible that Juan Miguel Gonzalez–or any Cuban citizen–may actually prefer his life in Cuba to life in the United States?

Thanks for your time; I’d appreciate a response.

jodih,

It’s when you become a “hey, she’s sueing my ass off” lawyer that I will get worried. :smiley: :smiley: And BTW, I can find the courthouse on a map, an I think that gives me quite a bit of legal knowledge.

[/sarcasm]


Cecil said it. I believe it. That settles it.


Relax, I’m not as Dave as I look!- A Wallified sig!

I think those who are so anti-government raid (Milroyj, Danielinthewolvesden, mikehardware, and others), really don’t care about Elian. I think they really are venting their anti-castro feelings out through this forum. Milroy, it has been explained time and time again that this search was reasonalble. The Gonzaleses were holding the boy against the will of his rightful guardian, his father. A lawyer has explained all of this to you, but you can’t seem to understand what she is saying. Prove it was unreasonable. Other’s have proved it was reasonable (opinion that it wasn’t doesn’t cut it). The Gonzaleses have brought this upon themselves. They have no one to blame but themselves.

As far as i’m concerned, Elian is going back to Cuba, where he belongs, and no amount of bitching on by the Miami Cubans is going to stop Elian and his father from returning to their home.

Not being a legal expert, but doesn’t the existence of a valid search warrant issued by a judge make the search reasonable. If the search were unreasonable, presumably, the judge would not have issued the warrant.

Or when given a search warrant, does the judge say, “Be nice to the people you’re searching.”

Gadarene: 1.prob, not sure, insuff evidence.
2.No, 3. Yes, but not sure, insuff evidence.
4. well thats just the point,now, isn’t it?
5.No, 6. yes. Apparently you have missed my point. I think Elian’s father should likely have custody of him, BUT I do not have (nor do any of you) ALL the evidence. We have no right to endanger the childs future w/o ALL the evidence. So, I want a court to hear ALL the evidence, consider it w/o all the politics & emotion, and make the proper decision. I hope that dec is for elian to be w/ his father.

I still say Reno overreacted. I proposed above one way that well could have worked w/o violence. Violence should have been the last resort, not the 2nd or 3rd.

JODIH: I respect your legal acumen & opinion. However, the Law is not black & white. I read that section to read the person must be “taken”. True, at Elains age, he can not give permission, but the INS did, then revoked it. Reno, who knows the law very well, was “surprised” at the 11th Circuits dec. Look at Title 18 Sect 1207 (I’m not absolutely sure of the last #). I believe it would give the Federals juristiction in this case. I’m only an expert on T26 & 31, tho.

Query: I carefully reread the paper. I saw the story on CNN, I heard the instant replay. I still have not heard the word “warrant”. Did Reno have a warreant?

Apparently, milroyj is on the road to arguing that no search warrants are ever valid. Whatever. Incidentally, according to immigration law, the AG is the absolute, unimpeachable final authority on asylum applications.

Oh, BTW, Lazaro Gonzales and his brother are multiple DUI offenders, and two of Elian’s Miami cousins are multiple felons, including robbery and firearms charges. Don’t see those two on the TV cameras anymore, I bet.

Danielinthewolvesden-Yes, she had a warrent.


Eagles may soar free and proud, but weasels never get sucked into jet engines.

The blanket, according to all news reports I’ve heard, was brought in by the unarmed female agent, in order to protect Elian from the gas and crowds. You’re really reaching at this point.

BTW, Jodi, great response on the armchair lawyer comment. I was waiting to see what you said to that, and you did not disappoint. I’ve been looking forward to your comments in this thread, both because you know more about the law than most of the rest of these people, and because I have an interest in custody and child advocacy law. Keep it up.

Doob: I think it’s more that these “anti-government raid” people are really venting against the Clinton administration and they really don’t care about Elian or Juan or Maryelsis (sp?). Yet, I’m anti-Clinton myself and have managed to see the facts, as you have, that those fools broke the law and therefore are kidnappers as they kept the child away from his father in violation of the law.

FWIW, I commend the government on the way it handled the situation (and long-time posters know I’m hardly an admirer of the Clinton administration) – the boy was removed without any bloodletting. It’s nice to see Reno and the Justice Department learned something from Waco or Mt. Carmel.

I am frankly sick of hearing about Elian. Without a bunch of rabid Cuban-American activists and an overzealous, irresponsible media, this case would have already been settled in its proper venue, a court with the appropriate authority. It is truly a molehill that has been transformed into a mountain.

My only regret about the matter is that the Cuban-Americans and Justice Department did not declare a day’s truce to tear-gas and then viciousily beat every so-called journalist on the scene.

Danielinthewolvesden, I’m taking possession of your automotive vehicle.

I’ve heard rumors that you don’t change your oil every 3,000 miles.

Maybe you do, indeed, change your oil on time, but I and the rest of us don’t know all of the facts. We’ll wait and let an independent mechanic at some garage somewhere decide.

If it turns out you do change your oil as you are supposed to and the rumors aren’t true, maybe, probably I’ll give you your wheels back.

So, just get used to walking until this happens.

M’kay?


Give me immortality, or give me death!

[test post. do not try this at home.]