Home Judge’s Opinions The Government's Community Caretaking Ruse

The Government's Community Caretaking Ruse

by Andrew P. Napolitano
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Edward and Kim Caniglia had an argument in their Cranston, Rhode Island, home, during which Edward retrieved a lawfully owned unloaded handgun and placed it on their dining room table in front of Kim and said to his wife, "Shoot me now, and get it over with." Kim did not touch the gun and left the house for the evening. The next day, after she could not reach Edward by phone, Kim returned to the house with four local police officers who met Edward outside on the back porch.

The police and Edward chatted, and he confirmed the previous day's events. The police then called an ambulance and ordered Edward to get into it to be taken to a hospital for a psychiatric evaluation.

Edward agreed to go only if the police agreed not to enter his house and not to seize his firearms. The police agreed to both conditions. Yet, as soon as the ambulance and Edward were gone, the police entered the house and seized Edward's guns. The hospital sent Edward home with a clean bill of mental health.

Edward then sued the police for an unlawful arrest, search and seizure. The police claimed that they entered the Caniglia home not to investigate a crime but to engage in "community caretaking." Can the police enter a private home without a search warrant to protect a resident of the home from himself? In a word: No.

Here is the backstory.

The Fourth Amendment to the Constitution protects the quintessentially American right to be left alone. It prohibits all unreasonable searches and seizures. Warrantless searches and seizures are unreasonable — and thus unconstitutional — unless they fall into the "exigent circumstances" exception.

An exigent circumstance is one in which reasonable minds believe that a criminal event will occur imminently that cannot be undone — such as murder or destroying evidence. These exceptions are not written into the Fourth Amendment but have been grafted into it by the courts based on reason and common sense.

Sometimes, however, the exceptions are based on an ideology that gives primacy to police over individual rights. Such primacy is a manifestation of a police state, not a free society.

In a free society, rights are recognized as natural and cannot be subjugated to the needs and wishes of the government without due process — notice of charges, a fair hearing before a neutral jury with constitutional protections at which the government must prove fault, and the right to appeal.

In a police state, personal liberty is suppressed immediately in deference to governmental needs. This contradicts the premises and the language of both the Declaration of Independence and the Bill of Rights, which is that personal freedom is the default position.

In reversing the U.S. Court of Appeals for the First Circuit in the Caniglia case, the Supreme Court did not go as far as Thomas Jefferson or James Madison, both of whom used 18th-century language to argue for liberty-as-the-default position, but it did tell lower federal courts not to expand the exigency exceptions in the home.

The exigency exception to the Fourth Amendment that the First Circuit found was "community caretaking." This ambiguous phrase identifies a doctrine that allows police to perform non-law enforcement duties and, when doing so, to be relieved of the restrictions imposed upon them by the Fourth Amendment.

The First Circuit found that the police, by claiming community caretaking, could enter the Caniglia home — without the consent of either of its owners, without a search warrant and without any articulable suspicion about criminal activity in the home — because they were entering to protect Edward from himself, and not for a law enforcement purpose.

This is a dangerous theory of constitutional interpretation, and all who believe that the Constitution means what it says should be happy that its wings were clipped by a unanimous Supreme Court last week. The danger in this doctrine is the government's argument that the Constitution only restrains the police when they are investigating a crime.

The FBI has made the same argument to the Foreign Intelligence Surveillance Court and to Congress, and successfully persuaded both to permit it to view without a warrant raw intelligence data — transcripts of telephone calls, financial and medical data, emails and text messages — claiming to be looking for foreign national security activities, not evidence of domestic crimes.

The community caretaking doctrine is no less dangerous than warrantless electronic surveillance. It is a ruse used by the government and, until the Caniglia decision, has been approved by federal and state courts throughout the United States.

These approvals fly in the face of the plain language of the Fourth Amendment, which protects "the right of the people to be secure in their persons, houses, papers, and effects" without exception based on the reasons for the government's assault on privacy.

Privacy violations by British soldiers — looking ostensibly for stamps on all papers in colonial homes pursuant to the tax imposed by the Stamp Act — arguably triggered the American Revolution and animated Madison and his colleagues to author the Fourth Amendment. Madison knew that the British search for stamps in colonial homes was a subterfuge; but on its face, it was an administrative function — tax collecting — not a law enforcement one.

Prosecutors and judges have misread history and rejected the very premise of the Bill of Rights and the Declaration of Independence — that our rights come from our humanity — with their argument that the Fourth Amendment restrains government invasions of privacy only during criminal investigations.

The instruction of the Fourth Amendment to the government is clear: Go get a warrant. But if the government can avoid the amendment's warrant requirement by its choice of words — "law enforcement" or "community caretaking" — then the Fourth Amendment is toothless. And a toothless Fourth Amendment is the gateway to tyranny.

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