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Opinion: So Sue Me 

Poli Psy

Pity the poor Floridian, awakened by the sound of his door cracking off the hinges. Freed from restraint by his state's "Castle Doctrine Law" -- SB-436, which allows a person to use deadly force to protect his home, business or occupied vehicle from an intruder -- the homeowner reaches for his .45, blows the stranger away, then inspects the fallen body only to discover its blood is spilling over a police badge.

Pity the poor dead cop, licensed by the Supreme Court's recent ruling in Hudson v. Michigan to kick in said door.

In that case, decided on June 15, the Court eviscerated the "knock and announce" rule, which required officers with a search warrant first to shout "Police!" then to wait 15 to 20 seconds before barging in. If they didn't, they triggered the "exclusionary rule," established in 1961, and forfeited any incriminating evidence they might turn up. Booker Hudson, the plaintiff, said the cops didn't wait; the cops admitted as much. But the Supremes ruled the evidence admissible anyway. In the majority opinion, Antonin Scalia - joined by John Roberts, Anthony Kennedy, Clarence Thomas and Samuel Alito -- called the exclusionary rule a disproportionately "massive remedy" for what may be minor police errors. Roberts named it a "get-out-of-jail-free card" for defendants.

Now, pity the poor judge charged with deciding whether to send the hypothetical Floridian to fry for the capital crime of killing a police officer, or to let him walk for legitimately defending his fortress, family and $5000 plasma-screen TV.

Commentators have noted that two legal principles, both dear to conservatives, are barreling toward each other like bullets at equal and mutually destructive velocity.

One bullet is the idea that interpretations of the Fourth Amendment -- protecting "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" -- have gone too far in shielding criminals and their defenders and crippling the police and prosecution.

The bullet moving from the opposite direction is the perceived liberty, an amalgam of the Fourth and the Second Amendments, to defend yourself and your property from intrusion by the government -- and, if you ask the National Rifle Association, which sponsored the Florida law and a raft of similar bills in other states, to defend yourself from anyone else, and by any means necessary.

Hudson radically trivializes the Fourth Amendment. Scalia dismissed knock-and-announce, whose roots extend to 13th-century England, as the mere "right not to be intruded upon in one's bedclothes."

The Florida law stretches the Fourth, and its authors -- like gun proponents generally -- exaggerate the scope of the Second Amendment. Exalting "the right of the people to keep and bear arms," they conveniently drop the adverbial clause preceding it: "A well regulated Militia being necessary to the security of a free State . . ." It's hard to see a well-regulated Militia in a state full of yahoos pointing Kalashnikovs at everyone who eyes their SUVs as if they might want to climb in.

But if these two precedents are legally at odds, psycho-politically they look remarkably similar.

Basically, Hudson says to the citizen: So sue me. If the cops make a mistake -- say, a SWAT team crashes your 5-year-old's birthday party and fails to find cocaine in the ice cream cake -- no big deal, says Scalia. The injured party can bring a civil-rights suit against the police. Hudson's attorney noted that such suits are almost always dismissed because of government immunity, and over the last 30 years none has yielded more than a dollar in token damages. But enjoy the cake -- because, as one letter-writer to The New York Times put it after the Supremes' ruling, if you haven't done anything wrong, you have nothing to fear. (This person is obviously not black or Muslim).

So sue me is the white-collar version of the principle behind the Florida law: Shoot first. Let God sort 'em out.

It's the same attitude that informs the Bush Doctrine of preemptive military strike, the same that gives the President leave to tap your phone or lock you up at Guantánamo because you look like a "terr-ist" to him -- then dares you to tell him he can't.

This stance is underscored by a belief that the world is divided into bad guys (the Criminal, the Terrorist, the Islamist -- in short, Them) and good guys (My Family, the Police, the President, America -- Us). The bad guys, having chosen to live outside the law, can't expect the law's consideration. Because if they aren't doing anything bad at the moment, they're plotting to, or about to any minute now. Florida's SB-436 presumes a shooter's "reasonable fear of imminent peril of death or bodily injury" when he hears the doorknob rattle.

The good guys are good even when they're doing what would ordinarily be construed as bad. The Florida law protects our shooter from criminal prosecution or civil litigation brought by the would-be intruder, or his estate. "In short," declares one pro-gun blogger, SB-436 "gives rights back to law-abiding people and forces judges and prosecutors who are prone to coddling criminals to instead focus on protecting victims."

In case you're confused, the victim in the case described above would be the guy with the smoking gun, not the guy growing stiff on the foyer floor.

This attitude is at once morally cavalier and self-righteous, aggressive and victimized. It assumes that might makes right, as long as might can get away with wrong. It calls itself law and promises order. And, while confidently defining the good guys and the bad, it makes everybody fear everybody, and foments a war of all against all.

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About The Author

Judith Levine

Judith Levine

Bio:
Judith Levine is the author of four books, including Not Buying It: My Year Without Shopping and Harmful to Minors: The Perils of Protecting Children From Sex. Her column, "Poli Psy," appears biweekly in Seven Days.

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