Monday, June 29, 2009

Searching and seizing for fun and profit

Recently, Madison's mayor, Dave Cieslewicz, issued a three-page proposal of ways in which to combat rising gun violence in certain of the city's neighborhoods. It's good that these problems are being more directly addressed, but I can't help but have some serious concerns about one of the major points in his plan:
Madison police would enlist parental permission to search for guns in their children’s bedrooms...

Utilizing parental consent to a search instead of a search warrant approved by a judge is a way to move quickly — before the guns can do damage — when police are tipped off to the location of a weapon in the hands of a juvenile.
I understand the desire to move as quickly as possible when there's strong evidence indicating that someone is in possession of an illegal firearm. I understand that police and city officials are frustrated by the continued spike in crime in Madison. But is this really the best way to go about combating the problem? By circumventing, as far as I can tell anyway, one of the central tenants of the Constitution?

Not only would this plan potentially be a major violation of the Fourth Amendment's protection against unreasonable searches and seizures, but it strikes me that it would only serve to foster greater mistrust between parents and their children, and/or children and their community.

I'm not saying we should never call out our young people on their more ridiculous or dangerous behavior. In fact, I suspect that a lack of good parental and community involvement is one of the key factors that leads some children to act out so rashly.

But is it going to help the situation to give police the power to rifle through a kids belongings without first obtaining a warrant? What happens when what they find is enough for them to level charges? Does the search just get thrown out for the lack of warrant?

What's more, when you really think about how such a policy would play out, you immediately run into hazards. How will police know/decide which kids to target? Do parents, friends, and other peers need to first come to the cops with information? Another option is one that The Sconz recently suggested:
Theoretically, the introduction of this plan suggests there is a group of cops who are keeping up with “gang politics,” per se. They are tuned into teen rivalries, they analyze youth arrests and try to figure out who is at risk to commit a crime with a firearm.
But like Sconz there, I'm a bit dubious that such a program exists, or that if it does, it's that sophisticated. Which leads one to wonder if this new policy wouldn't be ripe for abuse. Would there be a system of checks in place to look into the reliability of sources and make sure the searches weren't disproportionately (and unjustly) targeting kids from certain neighborhoods? That they wouldn't just be the result of petty vendettas?

I recognize that this is a terrible situation to be in, when things have gotten so bad that such ideas are being floated. And there are no easy solutions. But I can't help but cringe when yet another policy is invented that aims to take away the essential rights of minors. There's no better way to further piss off and disenfranchise them, which is precisely what we ought to be working to prevent.

So I have some questions, and until such time as those questions are satisfactorily answered, I have to object to this particular facet of Mayor Dave's new plan. I'm pleased that he and other city officials appear to be taking seriously the problem, but I worry that they're falling into knee-jerk reactions and scare mongering to address it.


Dustin Christopher said...

From what I understand of the plan (and the details are still fuzzy), it's aimed strictly at getting guns out of the hands of kids, not prosecution, and it is not in fact an unreasonable search or seizure.

As far as the constitutional thing is concerned, these police are being invited into the home ONLY by the home owner or occupant. Generally, constitutionally speaking, cops need a warrant or a crime must plainly be in the process of being commited to enter a home against the owner's will. However, if a police officer asks for and receives the occupants's permission to search, anything they find has been obtained legally.

It's why, in college, we always had someone ready to step OUTSIDE and address any police that showed up at the door during house parties. It's also why it's a bad idea to grow weed in your windowsill.

Now there aren't very many self-respecting parents who would call police over to come and seize a firearm if it meant their kids were going to jail, so the mayor's plan includes a certain degree of immunity granted to the kid the gun belongs to. Again, the degree of that immunity is a little fuzzy yet. I'm honestly a little concerned about what happens when they run a gun's numbers and find it's connected to six murders out east, but they've already been promised full protection.

You also mentioned whether there was in fact a group of cops keeping up on gang politics. There is: two of them, and while they are woefully understaffed, they are astonishingly good at their jobs.

So pending the clarification of a few details, this doesn't strike me as a particularly awful idea from the mayor's office. The police don't get to bully their way into anything, it all rests on the parents of these troubled kids. Hopefully having that responsibility gets some parents to step up and take a more active role in their kids' lives. But one has to wonder whether their kids would be packing heat if these parents were interested in stepping up.

Anonymous said...

Sounds like a typical Madison parent, let the brats have their free will and will hire a lawyer afterwards. I believe the gist instills or attempts to instill some basic responsibility back on the parents. Its really quite simple, as Dennis Miller put in stand-up a decade ago"If your minor has killed someone with a gun from your home, your just not doing your job as a parent" I think Madison needs to wake up to a reality.

Emily said...

Dustin - Thanks for filling in some of the blanks. You're right that police can legally enter and search a home if they get consent, but I still think there's a small gray area when the minors themselves aren't given the right to consent (or not). That's a whole other issue, of course.

And yes, I'm all for putting more responsibility on the parent's shoulders when it comes to their children. I think, in the end, what I'm looking for here, like you, is more clarity on the immunity issue, and how police decide which houses to go to in the first place.

Glad to hear we've got two talented cops on that beat, but not surprised to find that the dept. is understaffed. That would be a good thing for the mayor to address.

Briane said...

In general, minors wouldn't have the same expectation of privacy that an adult would have, so the search with consent of the parents may hold up constitutionally -- although smart lawyers like me might try to argue that parents cannot give consent to things their children have that are not owned by the parents, as such -- like a backpack or lock box that the kid brings home. So a parental consent to a room search might not allow the cops to check in jacket pockets or other places a gun might be hiding, whereas a search warrant would.

On the other hand, it's been years since I did any criminal defense, so maybe I'm out of date.

I agree it's problematic on many levels, though, number one of which is turning parents and kids against each other.

The Lost Albatross