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Old March 4, 2014, 04:51 PM   #26
Spats McGee
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Quote:
Originally Posted by psyfly
I fail to see how, if I am compelled under the law to answer a question which reveals what I have in my home, that doesn't constitute a search (by proxy). Which compelled answer has required me to perform the search for them.
The simple answer: Because SCOTUS hasn't said that it is a search. SCOTUS has generally held that a "search" requires some kind of physical intrusion into a space in which one has a reasonable expectation of privacy:

Quote:
Originally Posted by SCOTUS
The Fourth Amendment provides in relevant part that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Amendment establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” United States v. Jones, 565 U.S. ––––, ––––, n. 3, 132 S.Ct. 945, 950–951, n. 3, 181 L.Ed.2d 911 (2012).

Florida v. Jardines, 133 S. Ct. 1409, 1414, 185 L. Ed. 2d 495 (2013)
Quote:
Originally Posted by SCOTUS
By reason of our decision in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), property rights “are not the sole measure of Fourth Amendment violations,” Soldal v. Cook County, 506 U.S. 56, 64, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992)—but though Katz may add to the baseline, it does not subtract anything from the Amendment's protections “when the Government does engage in [a] physical intrusion of a constitutionally protected area,” United States v. Knotts, 460 U.S. 276, 286, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (Brennan, J., concurring in the judgment).

Florida v. Jardines, 133 S. Ct. 1409, 1414, 185 L. Ed. 2d 495 (2013)
Quote:
Originally Posted by SCOTUS
As Justice Brennan explained in his concurrence in Knotts, Katz did not erode the principle “that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.” 460 U.S., at 286, 103 S.Ct. 1081 (opinion concurring in judgment).

United States v. Jones, 132 S. Ct. 945, 951, 181 L. Ed. 2d 911 (2012)
I suspect that many of us find the question objectionable. I do. It seems like an invasive question. I would no more feel comfortable answering that than I would answering questions about whether I own a DVD player, or what kind of car I drive. That doesn't make it unconstitutional, either on an A4 or A5 basis though.
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Old March 4, 2014, 04:56 PM   #27
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Quote:
Originally Posted by Spats
SCOTUS has generally held that a "search" requires some kind of physical intrusion into a space in which one has a reasonable expectation of privacy
Didn't the Katz case I link change that though? Or am I missing something like Katz being overturned too? http://www.law.cornell.edu/supremecourt/text/389/347
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Old 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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Old 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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Old 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.

Quote:
The Government contends, however, that the activities of its agents in this case should not be tested by Fourth Amendment requirements, for the surveillance technique they employed involved no physical penetration of the telephone booth from which the petitioner placed his calls. It is true that the absence of such penetration was at one time thought to foreclose further Fourth Amendment inquiry, Olmstead v. United States, 277 U.S. 438, 457, 464, 466; Goldman v. United States, 316 U.S. 129, 134-136, for that Amendment was thought to limit only searches and seizures of tangible [p353] property. [n13] But "[t]he premise that property interests control the right of the Government to search and seize has been discredited." Warden v. Hayden, 387 U.S. 294, 304. Thus, although a closely divided Court supposed in Olmstead that surveillance without any trespass and without the seizure of any material object fell outside the ambit of the Constitution, we have since departed from the narrow view on which that decision rested. Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements, overheard without any "technical trespass under . . . local property law." Silverman v. United States, 365 U.S. 505, 511. Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people -- and not simply "areas" -- against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.
Emphasis mine

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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Old March 4, 2014, 05:39 PM   #31
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Thanks for the clarification, sigcurious.
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Old March 4, 2014, 05:52 PM   #32
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Quote:
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).
I've never claimed it wasn't arguable, but I have a question the assertion/distinction between the State and the "citizen" providing the questionnaire. The question could have come from the prosecutor, and even if not, the court is still supposed to be compelling an answer? Shelley v Kraemer 334 U.S. 1 (1948)

Quote:
(a) Such private agreements, standing alone, do not violate any rights guaranteed by the Fourteenth Amendment. Pp. 334 U. S. 12-13.
(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 such private agreements in these cases, the states acted to deny petitioners the equal protection of the laws, contrary to the Fourteenth Amendment.
(a) such questions, standing alone, do not violate any rights guaranteed by the Fourteenth amendment.
(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:
Miller: Can private parties ever trigger the 4th Amendment?

Solari: Yes, as we discussed, if a private party were to be acting at the behest of the government -- if a government agent were to ask that FedEx person to open up a package and look inside, or to ask someone’s girlfriend to go through their things looking for evidence to turn over to the police, then that would be government activity. That would be the actions of a government agent because government agents can’t ask private parties to do something they themselves couldn't do under the 4th Amendment, so in that type of instance it would be extended to that private party.
If the government can't ask the Fed Ex guy to open your package and tell them what's in it, how can they (assuming that by compelling an answer to the questionnaire is an action of a judicial officer etc etc and thus an action of the state) force you to metaphorically look inside your home and tell you what firearms if any are in it?

Last edited by JimDandy; March 4, 2014 at 06:01 PM.
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Old March 4, 2014, 06:34 PM   #33
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Quote:
Do you or anyone in your household possess a fire arm? Yes/No

What kind of gun is it?

What is it used for?

This is a legal document that you must sign. To lie on this is considered perjury.

I find questioning in this manner to be more then a little inappropriate and I'm very uncomfortable answering such questions. What possible justification could they have for asking that?
I remember getting a federal jury duty questionaire a couple of years ago, but I don't remember such questions on it. I wonder if they're new? Did some bureaucrats add them post-Sandy Hook or post-Aurora?

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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Old 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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Old 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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Old March 4, 2014, 07:13 PM   #36
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Back to the original questions:
Quote:
So I just got a jury summons for the 2ed quarter of the year for the 2ed year in a row. I have worked in law enforcement so I'm not worried about being selected. As part of the process however you are required to do a survey. This question as far as I can recall was not on the survey last year.

Do you or anyone in your household possess a fire arm? Yes/No

What kind of gun is it?

What is it used for?

This is a legal document that you must sign. To lie on this is considered perjury.

I find questioning in this manner to be more then a little inappropriate and I'm very uncomfortable answering such questions. What possible justification could they have for asking that?
1. Do not get cute in answering these. That is likely to draw unwanted attention to you and perhaps earn you a contempt citation. You can be succinct and general at the same time without crossing the line. For example: Do you possess a gun? Yes. What kind? multiple Purpose? sporting-defense

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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Old 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:
Quote:
...It really seems to be a dead case. This was not a case of a court dealing with an ordinary contract having a racially restrictive covenant.

Some things to note about Shelley that would make it inapplicable to a case involving the enforcement of a usual bilateral contract:
  1. The Shelleys were an African-American family who, in 1945, had bought a home in a particular subdivision. The subdivision dated back to 1911, at which time the owners of the individual parcels all agreed that no parcel within the subdivision would be occupied by non-Whites. This agreement was recorded. This is an example of a "restrictive covenant running with the land."

  2. The seller of the property was not a party to the suit. He had sold the property to the Shelleys, and was, as far as we know, completely happy with the deal.

  3. A lawsuit was brought in state court by other, neighboring, property owners to keep the Shelleys from moving into the neighborhood. The state court issued the requested injunction, and the Shelleys sued in federal court to block enforcement of the injunction.

  4. Note that the Shelleys were not being sued in state court on the basis of anything they agreed to. The underlying agreement being relied upon by the state court plaintiffs was entered into among past owners of the property. We don't know if any the Shelley state court plaintiffs were even signatories to that underlying agreement, nor do we know if the person selling the property to the Shelleys was a signatory.

  5. But in any case, the underlying lawsuit against the Shelleys was not based on any contract the Shelleys had entered into or any promises made by the Shelleys to any of the state court plaintiffs. There was, as we say, no privity of contract.
I've not seen anything like the core theory of Shelley being applied in any case not involving a restrictive covenant running with the land.

Further, Shelley may well be an example of the adage that hard cases make bad law. The Shelleys being dispossessed of their home was apparently unacceptable to the Court, yet at the time there were limited tools available to deal with such a repugnant result. In any case, Shelley is probably moot at this time because the various state and federal civil rights and anti-discrimination laws now available would provide ample statutory grounds to avoid a Shelley situation.
...
Quote:
Originally Posted by JimDandy
...I'd probably start with the exclusionary rule stems from 4th amendment case law, and that it applies to coerced confessions, and follow that up with some research into the origins of the rule, Miranda, and coerced confessions in general on the off chance I'll find a case...
You're welcome to try, but I think you'll come up empty. The exclusionary rule of course is the principle that evidence collected in violation of a defendant's constitutional rights generally can't be used in evidence against him in a criminal trial. And the rule in Miranda applies only to custodial interrogations. We indeed have Fifth Amendment law to the effect that one may be asked questions in under circumstances not amounting to a custodial interrogation, and one silence in response to such questioning may be used by the prosecution (Salinas v. Texas, No. 12-246, Supreme Court 2013).
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Old 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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Old March 4, 2014, 09:13 PM   #39
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Quote:
Originally Posted by tyme
...how can the constitution prohibit a "search" sans warrant, while not prohibiting a mandatory questionnaire sans warrant?...
  1. The Constitution does not prohibit a search without a warrant. The Constitution protects us against unreasonable searches. All sorts of searches under various circumstances are permissible without warrants.

  2. How is asking a question a "search"? Has a court ever ruled that asking a simple question is a search? That question has been on the table now for a while, and no one has come up with a federal court of appeals ruling that asking a simple question is a search.

  3. Courts which have looked at what constitutes a search have focused on physical intrusions into areas in which one has a reasonable expectation of privacy or surreptitious surveillance under circumstances in which one has a reasonable expectation of privacy.

  4. We are frequently required to answer questions asked by government.

    • If you go down to the post office to pick up a package that requires a signature, you will have show your ID. Is that a search?

    • We must answer questions on tax forms. Is that a search?

    • If you are a witness to a crime or to an accident, you may be required to answer questions. Is that a search?

  5. There is wide spread misunderstanding of the scope of the protections afforded us by the Fourth and Fifth Amendments. These are valuable protections, but they are sometimes not as plenary as people think. On one had, those protections protect personal privacy interests. On the other hand, those protections can frustrate the discovery of useful, important or necessary information -- and the discovery of the truth.
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Old 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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Old March 4, 2014, 11:48 PM   #41
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Quote:
Originally Posted by tyme
...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...
As long as a federal court of appeals has not ruled that asking a question is a search, it is not a search for the purposes of the Fourth Amendment.

Quote:
Originally Posted by tyme
...Reasonable is a weasel-word. I acknowledge that the courts have decided some things are reasonable and others are not,...
And you're forgetting the context in which this is being discussed. We are discussing a questionnaire soliciting information from prospective federal trial jurors to help assess whether a person could or could not be an impartial, fair juror in a particular case. That is a matter of considerable significance to the parties in the case, and certainly the defendant in a criminal case has a constitutional right to an impartial jury.

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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Old 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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Old March 5, 2014, 12:25 AM   #43
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Quote:
Originally Posted by dogrunner
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.
Object all you want, but to be accurate (rather than just pedantic) in the law we refer various rights not to testify or to answer questions as "privileges." As the Supreme Court wrote in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 Ohio Misc. 9, 10 A.L.R.3d 974, 36 O.O.2d 237 (1966), at 444 (emphasis added):
Quote:
...Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination...
As the Supreme Court wrote in Salinas v. Texas, No. 12-246, Supreme Court 2013, at page 4 of the slip opinion (emphasis added):
Quote:
...Petitioner's Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer's question. It has long been settled that the privilege "generally is not self-executing" and that a witness who desires its protection "'must claim it.'"...
It's not a matter of you being pedantic. It's a matter of you not understanding the correct terminology.
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Old 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.
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Old March 5, 2014, 02:04 AM   #45
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Quote:
Originally Posted by jason_iowa
...If it were pertaining to a specific case it should be asked during jury selection not in a jury summons...
I do find it odd that the questionnaire was included with the summons and needed to be answered at that stage. In our state courts a prospective juror calls in to see if he has to go to the courthouse; and he is not asked to complete the preliminary questionnaire unless he has to go to the courthouse and is therefor likely to be included in a pool for selection.
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Old March 5, 2014, 10:15 AM   #46
tyme
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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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Last edited by tyme; March 5, 2014 at 10:21 AM.
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Old 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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Old March 5, 2014, 11:43 AM   #48
JimDandy
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Quote:
4b. Tax law asks questions about finances and other things relevant to how much tax you owe.
The Cato institute article I linked earlier dealt with the IRS, the 4th amendment, and their summons power. According to the article, the IRS can summons just about anything for the civil side of their tax investigations. Their summons for a criminal proceeding do have to follow the 4th. However, the IRS evidently gets an extreme amount of leeway in determining what is and isn't civil. (At least according to the article which does appear to have a bias on the topic)

Quote:
The Constitution does not prohibit a search without a warrant. The Constitution protects us against unreasonable searches. All sorts of searches under various circumstances are permissible without warrants.
And the Supreme Court has said that warrantless searches are per se unreasonable. Right before they said there are a few specifically established and well delineated exceptions.

Quote:
Originally Posted by jason_iowa
It's auto populated as no so you can not leave it blank. It also has the required * beside it.
Where did you fill out this auto populated e-form? (as you said it was auto populated, I'm assuming it was an electronic form on a computer?) Was it at the courthouse? If so, was there a uniformed or otherwise-obvious (badge, ID, etc.) court officer watching over the group of you filling out this form? Did you feel like you could leave without filling out the form?

Boyd v. United States - 116 U.S. 616 (1886) says:

Quote:
It does not require actual entry upon premises and search for and seizure of papers to constitute an unreasonable search and seizure within the meaning of the Fourth Amendment; a compulsory production of a party's private books and papers to be used against himself or his property in a criminal or penal proceeding, or for a forfeiture, is within the spirit and meaning of the Amendment.
It is equivalent to a compulsory production of papers to make the nonproduction of them a confession of the allegations which it is pretended they will prove.
Which seems to mean the government can't force you to bring a receipt for your firearm (barring firearms specific things like 4473 forms etc.) if they can't search for, and then seize the receipt themselves via a warrant. Is this accurate?

In Silverthorne Lumber Co., Inc. v. United States - 251 U.S. 385 (1920)

Quote:
The proposition could not be presented more nakedly. It is that, although, of course, its seizure was an outrage which the Government now regrets, it may study the papers before it returns them, copy them, and then may use the knowledge that it has gained to call upon the owners in a more regular form to produce them;
Which seems to mean that a reproduction is subject to more or less the same restrictions as the original.

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:
This case presents the question whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a “search” within the meaning of the Fourth Amendment.
And
Quote:
In Silverman, for example, we made clear that any physical invasion of the structure of the home, “by even a fraction of an inch,” was too much, 365 U.S., at 512, and there is certainly no exception to the warrant requirement for the officer who barely cracks open the front door and sees nothing but the nonintimate rug on the vestibule floor. In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.
And "Do you or anyone in your household possess a fire arm? Yes/No" certainly crosses into that "entire area" "held safe from prying government eyes".

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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Old March 5, 2014, 11:50 AM   #49
jason_iowa
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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.
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Old March 5, 2014, 11:51 AM   #50
Frank Ettin
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Quote:
Originally Posted by JimDandy
...And the Supreme Court has said that warrantless searches are per se unreasonable. Right before they said there are a few specifically established and well delineated exceptions...
Exactly where and in what context? And picking a few sentences out of a court decision is not legal research. A court decision and any precedential value can only be properly understood in the context of the issue(s) presented by the underlying case.

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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