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Poverty's Penalty
. . . .[W]ith liberty and justice for all. The Pledge of Allegiance
Opinions from Federal Circuit Courts of Appeal are of interest to a variety of people. Lawyers read them in order to learn what the law is with respect to issues that have been ruled on by the Courts in the Circuits in which they live. The poor, who live within the jurisdiction of the Ninth Circuit Court of Appeals, read them to learn how their constitutional rights differ from those of the well off. They were reminded of this in August by the same court that had tutored them three years earlier in the case of Rochio Sanchez v. County of San Diego
Sanchez was decided by the 9th Circuit Court of Appeals in April 2007 and the U.S. Supreme Court announced in November of that year that it would not review the court's decision. The case stands for the proposition that it is OK to search people's homes without a warrant. Before my readers rush to add strong locks to all their doors I must reassure them. The case has no applicability to my readers. Their homes are protected by the Fourth Amendment to the U.S. Constitution that bans unreasonable searches and seizures. The people in California whose homes are not protected by the Fourth Amendment are those on welfare.
In 1997, the San Diego District Attorney came up with "Project 100%." Under the program those wanting to participate in the county welfare program must consent to unannounced visits from members of the Public Affairs Fraud Division who walk through the house looking in drawers, medicine cabinets, etc. to make sure no crimes are being committed. The practical consequences are that welfare recipients are forced to trade the protection afforded by the Fourth Amendment for welfare benefits. That is not, of course, how the judge who wrote for the majority sees it. It is how Judge Harry Pregerson, writing for the dissenters, sees it. He said: "This case is nothing less than an attack on the poor. San Diego's program strips these individuals of their rights of privacy. . . . This is especially atrocious in light of the fact that we do not require similar intrusions into the homes and lives of others who receive government entitlements. The government does not search through the closets and medicine cabinets of farmers receiving subsides."
The poor have now learned of yet another way in which the protection given many by the Fourth Amendment does not benefit them. It has to do with curtilage. That is the area around the home and includes such things as porches, driveways, front walks, etc. For 4th Amendment purposes curtilage was treated the same as the inside of the house. A warrant was needed to search the curtilage. The case of U.S. v. Pineda-Moreno in which a final decision was made in August changed that.
Pineda-Moreno addressed the question of whether the police can come onto a driveway at night without a warrant and attach a tracking device to the resident's car. The answer given by the 9th Circuit court is that it's OK. Judge Kozinski, one of the dissenters in the earlier case wrote a dissent this time around.
He began saying: " Having previously decimated the protections the Fourth Amendment accords to the home itself. . . . Our court now proceeds to dismantle the zone of privacy we enjoy in the home's curtilage . . . . 1984 may have come a bit later than predicted, but it's here at last." He observed that the majority justified its holding by saying that delivery people, children, etc. could use the driveway and sidewalk to get to the front door and, therefore, the resident had no expectation of privacy there. He observed that people with gated houses, electric fences, etc. were unaffected by the ruling since the general public cannot get near their curtilage. Addressing the insensitivity of the majority to the plight of the poor he said: "There's been much talk about diversity on the bench, but there's one kind of diversity that doesn't exist. No truly poor people are appointed as federal judges. . . . The everyday problems of people who live in poverty are not close to our hearts and minds because that's not how we and our friends live. Yet poor people are entitled to privacy, even if they can't afford all the gadgets of the wealthy for ensuring it. . . . [T]he constitution doesn't prefer the rich over the poor. . . . The panel's breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism. . . . Today's decision is but one more step down the gloomy path the current Judiciary has chosen to follow with regard to the liberties protected by the Fourth Amendment. Sadly, I predict that there will be many more such decisions to come." Sadly, given the proclivities of today's Supreme Court, he's probably right.
16 Comments so far
Show All"Poverty is terrorism"-Ghandi
Well, I suppose they wouldn't be poor if it weren't for god deciding to punish them for being poor... Or some such bilge.
They're poor because they are lazy and/or on drugs. They get sick because god is punishing them for being lazy and/or on drugs. Then they tie up our emergency rooms and send health care costs skyrocketing. It's all their fault.
I hope like hell this is meant to be sarchastic. If not, you definately need to be humbled.
my comment was obviously not serious at all. His I think is. the outhouses are overflowing these days, methinks...
I'm old enough to remember (and so is the author - and so are most of you) when the congressional Republicans (and their Democratic soul-mates) were rampaging to break up the Ninth Circuit because it was so left-wing. That was a while back. Things change. Now, Brauchli gives us this case (these cases) where the 9th CCA is to the right of the District of Columbia CCA, arguably the most
right-wing court in the country until now (though not without some breathtakingly stiff competition from other districts).
Because of the conflict, the case will now go up to the Kagan Supreme Court. Does anybody want to
bet on the outcome there?
The court system, from bottom to top, has been handed over to the...what shall we call them... conservatives? A ludicrous name when you look at what they want to "conserve". Where the Posners and the Easterbrooks are held up as sterling examples of judicial thinking.
Serious question: does anybody have a better way for naming and appointing judges than we have now? Because I have no better ideas...and the way it is now is a disaster.
That was before Bush packed it with reactionaries.
The Ninth Circuit Court of Appeals is implementing the conservative/Republican/capitalist dream that will be inflicted on the rest of the nation thanks to the corporate-mindset of the Roberts led Supreme Court...that one's level of constitutional will depend upon one's economic "worth"...shameful.
I wonder if we did a boon to Timothy McVeigh by killing him. American Kavorkianism.
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Proposed September 2008
I pledge allegiance to the democratic ideals of the United States of
America, and to my neighbors across this land of beauty who seek
tolerance, liberty, justice, education, equal opportunity, a healthy
populace, and accountable government of, by, and for the people.
We pledge allegiance to the goal of nonviolent conflict resolution
within this nation; to peaceful co-existence among the Family of
Humankind; and to fair relations with other species of life obliged
to share this planet.
Trylon
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Wake up “Middle Class America” the same thing has already happen to you.
FISA already allows this to happen. Speak up against the oligarchy and you get your house searched and bugged with no warrant. Every been through a DUI check point? Your papers please. Where are you going? Where have you been? Have you had any alcohol this evening? How long ago? How much did you drink? Have an older tired looking car? Now you are getting your car check out. Sounds like a party at 11 pm on a Friday!
Why do you hate America? I have nothing to hide! The Fourth Amendment to the Constitution, we don’t need no stinking Fourth Amendment!
Just a reminder
Amendment 4 - Search and Seizure. Ratified 12/15/1791.
“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.”
So I repeat myself “NO MORE (D’s) and (R’s)” stop voting for them. This November show up and vote differently! That retired economist on the peace and freedom party might be a better choice!
Where does private property begin? If I am on the toilet, is that private property? If my wife and I are cannoodeling in the kitchen, will the SWAT team invade our happy home? Can I legally bury a puppy under the apple tree? Will there be height restrictions on my sons' backyard swing? In many places already I cannot keep a junk car on my property, or let weeds grow higher than two feet.
Welfare recipients? Aren't FOOD STAMPS considered part of welfare? If so, aren't many unemployed Americans in for a big surprise!
Perhaps, "welfare" is the wrong name, and thanks to the clarification by the 9th, we shall now refer to it as WARfare benefits.
That must mean too, that there's no more Bill of Rights; we can now call that , the Bill of the RIGHT.
Ha. Right now, it's an attack on just the poor. Soon, as people get used to the concept, it will spread to everyone else...except the ruling class. (I can't bring myself to call them "elite".)
"The government does not search through the closets and medicine cabinets of farmers receiving subsides"
Those farmers are participants in the "great games" whereas the farmers produce the grains for elites to bet on in their gigantic gambling casinos, and also for elites to illegally corner the market on tortillas in Mexico, Pita in the Middle East and basmati in India... Those farmers are fueling the imperial steamroller... They MUST keep all their rights!
"The everyday problems of people who live in poverty are not close to our hearts and minds because that's not how we and our friends live. Yet poor people are entitled to privacy, even if they can't afford all the gadgets of the wealthy for ensuring it. . . . [T]he constitution doesn't prefer the rich over the poor. . . . The panel's breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism. . ."
But we're taught to avoid doing anything about it, whether we're on the top tier or on the bottom tier! We suppose we will be whipped if we dissent no matter which tier we occupy! We've seen both the rich and the poor catch hell for disturbing the status quo! The status quo is to be revered! Class division forever!!
The poor do live by different standards, and this has got worse in the USA. This court is an outrage, but so is the current worthless US Supreme Court.
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