Hiding Behind The Fourth Amendment
posted by Dan Filler
As I mentioned in an earlier post, a Birmingham suburb is considering an ordinance that criminalizes possessing a house in which an “open house party” occurs. An open house party occurs whenever two or more underage people consume alcohol in the home. As a consequence, any time parents allow their two kids to have wine at dinner they’re hosting an illegal house party. Mountain Brook’s police chief suggests that this won’t be a problem because the police can’t enter the house without some suspicion of misconduct and “no one really calls and says, `my mom lets my brother drink at dinner.’”
I’m not sure I like seeing the Fourth Amendment used in this fashion. It seems to me that a criminal law should be narrowly drawn to address the problem at hand. If we really think that it should be a crime for two or more underage kids to drink at home, regardless of the circumstances, we shouldn’t find excuses for why the law won’t be enforced at inopportune times. We should exclude those situations. And if we don’t exclude them, it seems to me that we want to find ways to stop those evil-doing parents who toast the new year with their underage issue.
While this law is minor, it’s relatively easy to see how hiding behind the Fourth Amendment becomes a way to encourage unnecessary lawmaking: the consequences of overbroad new laws are explained away as unlikely and irrelevant to selected citizens. At the same time, these provisions can be used, selectively, to generate a justification for entering homes that might otherwise be of interest to police. In my view, the only acts that should be crimes are those that a family in Mountain Brook – or Scarsdale or Winnetka or anywhere else – would be willing to forego in the privacy of their home. If the regulation seems to intrude too much on personal or family matters, it’s probably a bad law.
July 6, 2006 at 1:16 pm
Posted in: Criminal Procedure
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Responses (4)
Ted McClure - July 6, 2006 at 3:53 pm
I suggest that such semi-enforceable laws teach disrespect for the rule of law generally. And, as the Fourth Amendment is subject to rather flexible interpretation at the local level (as a practical matter), this creeps towards the arbitrary and capricious.
Not that I mind the goal of the ordinance, being a former resident of Darien, Connecticut (obscure historical/cultural reference from the mid-1960s).
Kevin H. Feeley - July 6, 2006 at 5:06 pm
Criminalize posessing a house? What will they think of next?
It seems to me that anytime a government begins creating “morality laws”, such as this (OMG, think of the CHILDREN!!!!) they become just another tool used for abuse of powers by governmental agencies, especially the law enforcement branches thereof. Why continually create laws that you know will be broken by, otherwise, law-abiding citizens? To generate revenue and to further reduce personal freedom. It also makes for nice press when election time rolls around again (“Just look what Councilmember Smith did for our children and families.”/”Making our community safer by removing the need for responsible parenting.”, etc, etc).
Making a law doesn’t make an activity stop. The only good part I can see here is that it is at a municipal level, therefore will be a matter of direct law, enabling citizens who disagree with the final outcome to move to a community that provides a more condusive environment for the personal behavioral choices they make. This is, unfortunately, not the case in many such unenforcable laws in this country.
Oh, when will this particular community begin shutting down churches for providing wine to minors?
Dave - July 6, 2006 at 11:20 pm
I think you’ve identified only a semantic problem. I don’t understand why the following two laws are any different:
1) The law here, which everyone in the community knows is intended to go after parties, and which everyone in the community knows will not be interpreted in an overbroad manner because of the realities of policing, OR
2) A law that simply spells that common understanding out in writing.
The law that spells everything out adds nothing so long as everyone in the community really knows what it means, as seems to be the case here. And the law as drafted in (1) may have certain enforcement benefits, in terms of capturing situations that are difficult to codify.
It seems to me that rule of law values are only disserved when the police actually start enforcing the law against people in a way the community understands to be unacceptable: i.e. against the family letting their children drink wine at dinner. Then that family did not really have fair notice because the understanding of that law in the community was that it was aimed at ensuring enforceability against house party situations. So long as this law is never enforced in the family situation, we’re in the same area we are with all the other ridiculous laws that never get enforced (like wearing a hat on Sunday in some places, etc.).
Dan Filler - July 7, 2006 at 11:06 am
Dave, I think one problem with your analysis is that there doesn’t seem to be a limiting principle. Why not adopt a law that prohibits anyone from buying Sudafed, then selectively arrest only those people who look – from their appearance – like they’re likely to make meth with it? In this way, we can allow law abiding folks to buy their decongestant, and we can target skanky looking people who a) are about to make meth or b) are the sorts of folks we’d prefer locked up in any case.
Police need some discretion, but I don’t think that means we should criminalize all conduct and allow the police and DA to arrest and prosecute only those people “everyone in the community” thinks ought to be arrested.
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