March 4, 2014, 04:51 PM | #26 | ||||
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March 4, 2014, 04:56 PM | #27 | |
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March 4, 2014, 04:57 PM | #28 |
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I would answer: Yes, which one?, again which one?. Don't think you would have to worry about being called for duty.
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March 4, 2014, 05:00 PM | #29 |
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Honestly, I didn't read Katz from your link.
The quotes that I linked above did raise the question in my mind as to how the whole "physical intrusion" element plays out in the information age, but I didn't really want to go down that path. That said, there is at least an arguable distinction where the activities of a government agent leads to the transmission of information or evidence (as in Katz), and the submission of a questionairre by a citizen (as in the OP). The question then becomes, what's the penalty for not answering the question? ETA: It also appears that in Katz, gov't agents (FBI) had placed listening devices into a public telephone both. That satisfies the "physical intrusion" aspect.
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March 4, 2014, 05:22 PM | #30 | |
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To clarify, the bug was not in the phonebooth it was outside of the booth. This is a critical point in Katz which shapes modern 4A thinking. The lack of need for physical intrusion to warrant 4A protections is re-enforced in Kyllo v US.
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While not directly addressed in Katz, the decision touches on the idea that one's words can be protected by the 4th. |
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March 4, 2014, 05:39 PM | #31 |
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Thanks for the clarification, sigcurious.
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March 4, 2014, 05:52 PM | #32 | |||
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(b) The actions of state courts and judicial officers in their official capacities are actions of the states within the meaning of the Fourteenth Amendment. (c) In granting judicial enforcement of answering such questions in these cases, the states acted to deny petitioners the equal protection of the laws, contrary to the Fourteenth Amendment. It's the same philosophical principle as Agent of the State question I raised earlier as well. The government can't do something through someone, they can't do themselves without them sort of thing. Compelling you to answer someone else's question that they can't compel you to answer if they asked it seems awful similar to having someone break into and search your house when they can't get a warrant to do it themselves. Now as you've said, the Supreme Court hasn't said so, yet - if ever, so it's not established yet. But the framework appears to be there. For me the question is was the question reasonable under the case(s) being tried. Which is a step we've somewhat skipped over. I don't see how it could be, but without knowing the cases involved (which we probably can't ever know) we can't really say one way or the other. We could be correct that asking everybody those questions is an unreasonable "search" and wrong that asking THOSE people this question was an unreasonable "search". Edit to Add: Here's a quote from that FLETCH.Gov website from my first post on the subject, that really helps me form how to phrase the question I have- Quote:
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March 4, 2014, 06:34 PM | #33 | |
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I suppose I'd write something like, "4th and 5th Amendments, as well as Douglas's penumbra of privacy, preclude me from giving answers to these questions. If you feel like trying to compel me to answer them, they must be important for some judicial reason, at which point I'll directly invoke the 5th." If some corrupt federal judge doesn't like it, she or he can call me into court and explain on the record exactly why I should have to answer such questions on a jury survey. A much more appropriate question (like, for voir dire) would be "do you support the RKBA?" Absolutely. I think everyone not in prison should be able to carry firearms with few restrictions. Can I go home now, since you won't be needing me on the jury for this firearms case? Definitely don't lie, but lying and not answering aren't the same thing. Is there anything wrong with that strategy?
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March 4, 2014, 07:02 PM | #34 |
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I will be a cold day in hell before I answer those questions. I would like to see the statute that requires me to answer them, it doesn't really matter though, because it's not going to happen.
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March 4, 2014, 07:12 PM | #35 |
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We have more hurdles as well. If you search for IRS and Fourth Amendment you'll run into this scholarly(?) article which makes the claim that fourth and fifth amendment protections don't apply to civil actions. As a prospective juror, I'm not sure it's either criminal or civil action.
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March 4, 2014, 07:13 PM | #36 | |
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Back to the original questions:
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2. Do not lie. That is both immoral and illegal. 3. If you feel strongly enough about it, you should just leave them blank. That may or may not draw attention. I've seen lots of juror questionares which had unanswered questions. You might get asked about this and you should explain that possession/ownership of firearms is a fundamental right per SCOTUS and asking you to disclose information about that is similar to asking how you voted. Of course, they'll know the answer if you say that. You may still be ordered to answer and you'll have to decide if it is worth possibly going to jail over. My suggestion is to go with #1. As some of the others here (the attorneys) have noted, the parties to a lawsuit or a criminal case need personal information in order to determine if you can be a fair juror. |
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March 4, 2014, 08:24 PM | #37 | ||
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Lots of flights of fancy.
The issue here is about a simple question violating Fourth Amendment guarantees of freedom from unreasonable searches and seizures. No on has come up with a case in which a federal court of appeals has said that a simple question violated Fourth Amendment guarantees. Instead folks have come up with irrelevant cases dealing with wiretaps and surreptitious surveillance, a case involving an attempt to enforce a racially restrictive covenant running with the land, and various Fifth Amendment cases. Katz and the wiretap cases all involve some kind of surveillance, intrusion or eavesdropping under circumstances in which one has a reasonable expectation of privacy. I discussed Shelley v. Kraemer here:
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March 4, 2014, 08:50 PM | #38 |
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Frank, while I'm not saying there is any case law on the subject, what is the functional difference between, on one hand, searching your home for guns and surveilling you whenever you put guns in your car, and on the other hand, asking, on a government form, under penalty of perjury, what guns you have and what you use them for?
If there's no functional difference, how can the constitution prohibit a "search" sans warrant, while not prohibiting a mandatory questionnaire sans warrant?
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March 4, 2014, 09:13 PM | #39 | |
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March 4, 2014, 11:07 PM | #40 |
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1. Reasonable is a weasel-word. I acknowledge that the courts have decided some things are reasonable and others are not, but they have not declared that it's reasonable to search for make and model of items in your home without a warrant (not yet, at least). So, does it even matter?
2. That was the core of my question. How is this *not* equivalent to a search? The means are different. The results could be the same. 3. If one can be asked under penalty of perjury what someone would find if they conducted a physical search, again, *how is it not effectively a search*? I am not interested in the definition of search as a physical incursion into a private space. If a questionnaire has the same outcome, why shouldn't it be considered a search and why shouldn't 4th amendment protections apply? Using a questionnaire as a means to ask questions irrelevant to suitability for jury duty, simultaneously side-stepping the 4th amendment (questions are not a physical search) and 5th amendment (no realistic threat of criminal prosecution and the answer is unlikely to be incriminating --as long as you answer truthfully :wink: ) seems at best stupid and at worst malicious, but difficult to pin down a reason why it shouldn't be answered. That's why my original post referenced 4th, 5th, *and* Douglas's famous opinion on the matter. 4a. Clear necessity. You don't want someone else being able to retrieve your mail. 4b. Tax law asks questions about finances and other things relevant to how much tax you owe. 4c. That hypothetical of being a witness covers a lot of ground, and I can't answer what I would or wouldn't answer in such a broad set of cases. A question asking if I own The Anarchist Cookbook is not a search, but it's equivalent to a search, and can be declined on 5th amendment grounds where the 4th amendment covers the equivalent physical search. 5. I recognize that. To the best of my knowledge, the 5th amendment protects against being forced to make incriminating statements that can be used in criminal cases, when a reasonable person might believe that the statement might be incriminating and might be used in a criminal case. However, the way law enforcement and prosecutors, particularly the feds, operate, I take *any* interaction with them *at all* to represent a non-negligible risk of getting dragged into some criminal prosecution, depending on the mood and interests of whatever federal prosecutor is dealing with the case. And even if there's no hint of a criminal case *yet* does not mean there won't be in the future, so in many cases I would be inclined to invoke the 5th amendment defensively even if there's no obvious criminal case in progress. All this is based on the fact that I don't have close contact with anyone in law enforcement and therefore any contact is likely to be adversarial.
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March 4, 2014, 11:48 PM | #41 | ||
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If you were a defendant being prosecuted for a crime, you would no, I suspect, want your lawyer to have as much information about prospective jurors as reasonably possible to assist him in attempting to exclude from the jury persons who might not be impartial or fair. You'd want something similar if you were a party to civil litigation. We have a strong policy favoring the integrity of juries and assuring that persons actually deciding the outcome of a trial are impartial and fair. The courts will sustain some inconvenience to jurors and some intrusion into the privacy of jurors in order to further that policy. Such is the price of having, to the extent reasonably possible, fair and impartial juries. You apparently don't agree that is a fair price, but that doesn't matter as long as the courts do.
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March 4, 2014, 11:56 PM | #42 |
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Ah, but Frank, I, for one, DO object to your characterization of any aspect of our bill of rights as a "privilege!...........Just to be pedantic about it.
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March 5, 2014, 12:25 AM | #43 | |||
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As the Supreme Court wrote in Salinas v. Texas, No. 12-246, Supreme Court 2013, at page 4 of the slip opinion (emphasis added): It's not a matter of you being pedantic. It's a matter of you not understanding the correct terminology.
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March 5, 2014, 01:53 AM | #44 |
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It's auto populated as no so you can not leave it blank. It also has the required * beside it.
If it were pertaining to a specific case it should be asked during jury selection not in a jury summons. You would also think they would ask how I felt about guns rather then gun ownership. Owning a gun has little or no bearing on how I feel about guns or how it may bias me in a trial. I know many people who have an anti gun mentality but have a family heirloom. Also If I have a roommate who owns guns but I hate them and could be totally bias against them what does possession of someone in my household tell them other then there are or are not guns present at my address? I answered honestly. I just find the question to be inappropriate. To compel someone to answer a personal question just because they are registered to vote. It seems like a violation of privacy to me. |
March 5, 2014, 02:04 AM | #45 | |
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March 5, 2014, 10:15 AM | #46 |
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I think it's a federal jury duty thing.
I guess because the federal courts are much more organized and know what cases are going to trial, when you get called for federal jury duty you've already been placed into a jury pool for a specific case before you get there? Having potential jurors fill out a short survey somehow helps them allocate jurors to cases? If I recall, when I got my federal jury duty notice, there was a several-week window during which they could call me in for duty (they never did). And for reference, I'm not even in the same federal circuit as Iowa. I too can't fathom how household possession of guns by itself, or what kinds of guns they are, is relevant to selecting a juror. As Jason pointed out, even if you want a jury that loves or hates guns of a particular type, it's *still* irrelevant. Some of the most obnoxious anti-gun folks have EBRs or MGs, while some of those who don't own guns strongly respect others' rights to own, carry and use them for all lawful purposes.
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March 5, 2014, 10:31 AM | #47 |
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One of the things that I see going on in this thread is that: (a) several of the posters object to the question as an unwarranted invasion of privacy; and (b) are trying to shoehorn that objection into legal terms. That's perfectly understandable. As an attorney, I see this all the time. Someone feels that he or she "was done wrong," and files a lawsuit. Right, wrong, or indifferent, "I was done wrong" is not a cause of action recognized by our legal system. In order for the Complaint to survive a Motion to Dismiss, it has to articulate the facts giving rise to the cause of action, as well as the legally-recognized injury that was caused by the aforementioned facts. Something like, "I met all the requirements of X, Y and Z, thus developing a right to have my Certificate of Whoknowswhat. However, the Defendant denied my Certificate of Whoknowswhat without cause or justification. As a result, I lost Umpteen Million Dollars."
Several of the posts that I've read look like the poster is trying to find some way to squeeze "mandatory question on a form as a violation of rights" somewhere in between the Fourth Amendment and Fifth Amendment. While there are certainly cases involving one of these "penumbra of rights" theories, I'm unaware of any that fit the bill in this case. For those interested continuing the search, I'd suggest looking into cases in which the IRS has been sued. The IRS gets sued on a regular basis. Surely someone, somewhere has raised this. Such cases may be listed as "Plaintiff v. U.S.," but I'm not entirely sure.
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March 5, 2014, 11:43 AM | #48 | |||||||
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Boyd v. United States - 116 U.S. 616 (1886) says: Quote:
In Silverthorne Lumber Co., Inc. v. United States - 251 U.S. 385 (1920) Quote:
In KYLLO V. UNITED STATES (99-8508) 533 U.S. 27 (2001) 190 F.3d 1041, reversed and remanded. (Which may be of further interest to interest to Spats McGee in the vein of Katz and physical vs non) Quote:
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Edit for Spats: Yeah that's most of where I've been looking. That Cato aticle started me down that path, and it's got dusty memory in the back of my mind trying to come to the surface but I can't remember enough of it yet to get a good search query. Something about a guy getting charged in State Court for income reported to the IRS for some money making activity illegal in his state, maybe gambling. I remember he claimed a 5th amendment violation, and lost, because he could have refused to report the source, but since he did it was somehow deemed voluntary. I have to keep thinking about it to remember more. Last edited by JimDandy; March 5, 2014 at 11:50 AM. |
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March 5, 2014, 11:50 AM | #49 |
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If an officer of the court came to your home and asked that question would it be appropriate? If they told you that if you do not answer honestly that you will be guilty of perjury.
What if they asked on the census? To me it just seems more inappropriate then anything. I'm not saying they are violating my constitutional rights. It would be nice to know how my ownership or lack there of could be germane to the proceedings. I'm a potential juror for the second quarter of the calendar year. Maybe someday Ill find out if there is a gun related case up in this quarter. |
March 5, 2014, 11:51 AM | #50 | |
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You still have not cited a federal court of appeal case saying that the simple asking of a question is a search. And see post 47.
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