#099: The 4th Amendment in peril?

Hello everyone and thanks for tuning in to the Left of Greg podcast. I am Brian Marren, the host and creator of the show. As always, I will be joined by human behavior expert Mr. Greg Williams, who the show is affectionately named after. Here on the Left of Greg show, our goal is to increase your advanced critical thinking ability through a better understanding of what we call human behavior, pattern recognition, and analysis. If you'd like to find out more about what that is, you can check out our website at arcadiacognerati.com or by following us on Facebook at HVTRA. Please help support the show by checking out our Patreon site where for just a few dollars you can have access to all kinds of episode extras, videos, and short tutorials that are updated weekly. Just click the link in the episode details that says Support the Show and we'll take you directly to that site. If you have any questions or would like us to cover a specific topic, please reach out to us at leftofgreg at gmail.com. On today's episode, Greg and I are talking about a case that is about to be heard by the U.S. Supreme Court involving the confiscation of private property during the course of a police investigation. Although the property that was confiscated were legally purchased firearms, this case has more to do with the Fourth Amendment of the Constitution than it does the Second Amendment. Greg and I cover a legal gray area known as the Community Caretaking Exception that pertains to a police officer's ability to perform a warrantless search. If you'd like more information about the specific cases we discussed, please see the episode details for links to the court filing as well as an article that summarizes the events. Please don't forget to follow us on social media. You can find the links in the episode details. And if you enjoy the podcast, please tell your friends about it. Thanks for tuning in, and we hope you enjoy the show.

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We are streaming live on Facebook. For those of you just listening in when we publish it, you can always follow me on Facebook and you can listen along live, comment, or just blow me kisses like my buddy Dan does every time I pop up on here. So just a reminder for everyone. Today we're talking about a case that is yet to hit the Supreme Court — they haven't ruled on it yet — but it's a case involving a Fourth Amendment issue primarily, and also Second Amendment and technically the Fourteenth Amendment as well. So it's hitting on a bunch of those. Just to go over real quick what happened: this actually originally took place about five years ago where a husband and wife — they were married over 20 years — got into an argument. The husband Edward came out, brought one of his guns out, said hey, why don't you just shoot me, and then he left. The wife put the guns away, then he came back, and this kind of went back and forth a little bit. She ended up staying at a hotel that night and then called the police, got them involved. They went back there, interviewed him, talked to him. For the most part they said he was cooperative — one of them described him as acting normal. So this wasn't a hostile domestic violence situation anymore. We don't know all the facts of everything that went and happened the night before, but they basically talked him into being admitted to the hospital for a psychiatric evaluation. He did go voluntarily — he eventually agreed to go. And then after he left, the police officers went into the house, searched the home, and they actually confiscated the weapons. So then he gets back out of the hospital, tries to find out his weapons are confiscated, goes and tries to get them back, and they actually denied him. So he then sued, and we basically went back and forth in the courts where he got struck down. The court said the police were engaged in what they call community caretaking functions — so remember that term, because we're going to jump into that. It's where they're allowed to take certain pieces of evidence either for custody purposes, documentation, or just to secure property. There's a lot of reasons for that. But this one is very specific because they went and took his weapons away from him. Now you're getting into a violation of the Second Amendment because those were lawfully purchased, legally owned firearms. There was nothing illegal about what happened — they just went and took them. So that's the main point of this case, and what they're using to justify this is that term I talked about — the community caretaking function — meaning it's not directed as part of some other investigation. It's just there are other functions, what they call community caretaking functions, where a police officer is allowed to do certain things that you would maybe otherwise need a search warrant for. Is that a correct way to kind of describe that?

The reason there's such trouble naming it in one sentence is because it's wrong. It's so wrong. What you're trying to do is create a balancing act.

Right. I'm just trying to put something on the wall for us to compare against.

Community caretaking is an absolutely essential function of the police and it needs to be around. But in this manner, what we're talking about is taking and trying to solve a person drowning by throwing them an anvil. It's the wrong tool for the job and we're not going to get there from here. So all our readers and listeners — Brian's going to post the paper we're talking about — even though it's five years old, the reason it's relevant is tomorrow. Under certiorari, the courts have said they're going to take a look at this case because there's a whole body of cases that are very similar to it, and it's going to go up to the Supreme Court. I've already predicted — and thank Sean Clemens, our staunch protector of the Fourth Amendment — he sent it to us. This is an outrage, and I'm ready to fight both sides with him. We know the right of the people to be secure in their person, house, papers, and effects against unreasonable searches and seizures shall not be violated. But the most important part of that, Brian, is no warrant shall issue except based on probable cause and supported by oath or affirmation. There's your problem. Because what you were trying to define earlier is this gentleman had a domestic where police were called. There was no signs of violence. Neither party had ever been violent with each other, and there was no evidence that violence had occurred on this night, nor was there any physical injury or damage to the property. And so the woman says, hey, the next day when the cops said okay, we're going to leave — because they found nothing wrong that night, Brian, they did not arrest anybody — she says, hey, I can't get a hold of my husband. Would you do a welfare check? Now they go over, as you described.

Right. But the point of that is they were still called over there, so they have to investigate what happened.

But remember, an investigation and the determination of a crime are two very different things. And I think that's why you and I wanted to talk about this. Police officers have the right and the ability to lie, and in certain circumstances using a ruse is essential. The cops on the ground didn't see anything they thought was dangerous in the moment, Brian, but they said, we don't want to do an involuntary commitment, which makes this guy 48 hours. We're going to ask him, do you want to go get checked out? The guy says, clearly, I want to go and get checked out because I want to salvage my marriage. I don't want this to be a problem. I'm not feeling like killing myself, but I'll agree to go get checked out. But you have to agree that you're not going to take anything out of my house. That was the balance they struck, Brian. And you understand they were using the best interests of the public. And so he rightly sued. I take his part because I don't think we can determine probable cause in the future.

Here's the difficult part of that — the okay, I'll go do that if you don't take anything. Well, neither party technically has the authority to do that. You can't make a deal on the side right there saying I'll go do this, officer, if you don't take my weapons. And if the officer's within his rights, he doesn't have to honor that.

You're right, but there's your slippery slope, Brian. Listen, if I agree to talk to you, you have the right to conduct an investigatory stop and you and I are talking. You're the authority figure, you're acting under color of law. You're the officer. And you say, listen, you have the right to remain silent, and therefore I know now that the onus is on me, that I can invoke an attorney. And I go, no, no, I want to continue to talk to you. And we continue having a conversation. Now, as that conversation evolves, I go, this is no longer in my best interest. I can invoke that — I no longer want to speak to you. You can't go back retroactively and say, yeah, but you were speaking to me in the first place. And I think that's what happened here, Brian. I think the coppers are worried about this family. They're specifically worried about the husband harming himself — a legitimate concern. But he's committed no crime. So if he voluntarily agreed to go with them, and in the bargain he says, hey, as long as you don't take my two specific guns, I think it's well within his right to do that. What he did is he made a bargain with the police saying, because I haven't committed a crime, please don't come into my house and take my guns.

So here's where policy and procedure becomes — I give this as another example of what happens when instead of focusing on making our people better, instead of giving the police the best training ever, we just put in policies and procedures to make sure that you must do X, Y, or Z when A, B, or C happens.

And cover our ass as an agency. In every agency.

And I'm saying this is why that has had to occur, because we don't invest in it. And then something happens and we retroactively go, well, that police officer made the wrong decision. We don't go, all right, let's train our people better. It's, well, let's pass a policy or procedure. And then now they no longer have the ability to interpret the situation based on their training, their experience, and their judgment to go, here's what we should do. They don't get that anymore. So now they're going down the checklist of things to do.

Precisely.

Now it comes into play when you have these mental health issues, which are different. We have the law, we have the Constitution, we have certain rights, but then we don't have a clear interpretation of what happens if these mental health situations arise. Who determines that? Because the police say, well, yeah, he's cooperative and normal to me. Are you a mental health professional? Where do they get their determination?

They're trained. They have received training. But is their training commensurate with the situation they now find themselves within?

So we're already here — before we even get into the constitutionality of the case — we're already understanding everything that contributes to cases like this. This is how these things occur. Because now what happens from this is everyone is going to have a huge uproar — every legal gun owner in the United States. And then the NRA is going to say, see, look, we told you they're coming to take your guns. And then it gets blown up because we don't take it issue by issue. And that's the difficult part. How do we interpret this one? Because if it's in his best interest and the safety of him and the community that we're going to hold on to his weapons — if it's for a short time period, if it's for some emergent situation — I think that's easy. But to not give them back, that's where it changes for me. Maybe the police officer based on the situation thought this was the best thing to do at the time, and then a day or two later goes, you know what, it doesn't fall under that, we need to give these back. That's a different case.

That would have been a better case.

Right. And what happens is when you don't get them back, that's different. Because when you get into different mental health or domestic violence situations — and every police officer knows how volatile those situations are, that's why most traumatic or chaotic events stem from these — it's high temper, high emotion, it's very personal with people. That's why domestic violence situations spiral out of control incredibly quickly. So them stepping in and saying, for your safety and for everyone else's safety, you can't have these weapon systems — because they're only designed to do one thing, they're designed to take a life — that's why now what comes in is exactly what we're bringing up right now. Because he goes to get them back and they said no. So now are we looking at a violation of his Fourth Amendment, Fourteenth Amendment, and of course Second Amendment rights? Or is this still within the best interest of the general public?

So here's my argument, Brian. First of all, it would be great when you post this up after we're done live and you have the chance to put the link up — you can give the link that the U.S. Supreme Court is going to be looking at tomorrow, so everybody can draw their own opinion. But here's the thing that I would caution any reader, listener, or watcher: don't get hung up on the Second Amendment. The reason we're talking about guns here is because of the imminent safety of the participants — they felt there was enough of a need to separate the guy from his gun because he made an offhand remark. He had an unloaded gun on the kitchen table and said, why don't you just take it and put me out of my misery. Now even a casual statement like that has to be taken with a degree of seriousness. You and I are involved in veteran suicide, and we know that having the means to carry it out and saying it are two critical parts of the puzzle. So the problem, though, is if you need a law, draft a law. The requirements for the Fourth Amendment — and that's where I think we should focus; I think the Second and Fourteenth apply, but I think the Fourth is key — they're carefully drawn for a very specific reason, because the Fourth Amendment deals with your personal effects, your person, and your home. And what they did is they took community caretaking, which clearly and simply deals with motor vehicles. It started with vehicles, and that's what we should make the clear definition.

So if we're talking about the different amendments this falls under, I would start with the Fourth and then the Fourteenth, which generally applies almost any time the Fourth does. And then I would say the Second Amendment issue here is the least of them.

Exactly.

So let's talk specifically about what this community caretaker clause is, because as the docket shows in the court case, they gave so many examples where the interpretation of that has been split by state courts and federal courts time and time again. These are usually very close calls when the judges make them. So go back to where that came from in the case — it involved the search of a vehicle. Let's start there.

Let's bring it down even lower first. Give it the lowest possible standard. You're a cop, you walk into the park and you see a paper bag and a gym bag sitting next to a park bench. They're not leaking anything, they don't seem suspicious, and there's nobody around — you see a kid running with a soccer ball. You go, hey, is that your bag? It's been there all morning. So you go over, you shine your flashlight, take a little peek in it. Looks like some gym clothes. Somebody forgot it. You don't have to go get a search warrant to open that bag looking for ID to try to return those clothes to the rightful owner. So that would be a caretaking function of the police — an officer has to do those types of things in a normal part of their day. Then it expands with the advent of motor vehicles. The Carroll decision covers searching motor vehicles, folks — look that up on your own.

Wait, real quick before you jump into that. Just because you gave a great specific example — the bag with the kid playing soccer, is it yours? And now I have to find out who this is. Even that situation alone, which is completely legal and falls under normal police duties throughout the day — a defense attorney, if that officer now finds a bag of dope, he'll be all over you. That would be highly contested. So although your example is a very concrete explanation of it, when that comes to actually litigating in court, there's going to be a whole bunch of different issues.

Exactly. Hence the reason that we would stipulate to the community caretaking. So you have a motor vehicle that's been involved in an accident. The person driving can't speak for themselves. There's a laptop on the floorboards, the guy's cell phone, and in the trunk he's got some personal effects. Well, there's an exception called the inventory exception, which applies when a person's taken into custody — like for a DUI — and they're no longer with their vehicle. You have to go through an inventory so he can't come back and sue you later saying, hey, I had a CD player, I had this in the glove box. Less intrusive is the community caretaking exception. You've committed no crime — you're the victim of an accident. A cop has to protect your interest when you can't protect it yourself. So he goes through, takes those items into custody until you can come back and retrieve them. If that had happened in this incident — if a day or two later they knew and they came back — we wouldn't be having this discussion. But what happened is what you and I have talked about briefly before in an episode: mission creep. What happens with the law is a person says everything between this quote and this end quote applies, but a reasonable person would assume that this also applies. Listen, if it's not written in the letter of the law, you have to fight it out in court if there's such a thing as the spirit of the law. Here it's very clear that this guy didn't have a violent background. He wasn't suicidal. They had been married for 20-some years. He thought his marriage was coming to an end. Brian, you and I have both been guilty — and most times at each other — of saying things like, I'm going to kill you, or if this doesn't happen I'll hang myself. That doesn't mean that at that point you can come into my house. My house is a protected area. And here your argument is going to be that, yeah, but these coppers got a search warrant. This argument that we're going to have on the 20th is that the coppers got a search warrant to go into another house for another character and take his guns because they felt he was going to do something. And guess what they found in the house on that search warrant? A bunch of bomb-making materials in Florida. The guy looks like Ted Kaczynski — Ryan will post that one too, folks. Take a look at it. Talk about a manifesto writer. And the guy is saying, hey, you didn't have the right to draft a search warrant to come into my house for my own personal safety. That's my argument. Sean disagrees with me. I think the U.S. Supreme Court is going to side with me that even though it's good to get a search warrant, these pseudo search warrants — these false search warrants where you go and get a judge to sign them — I can't get one for a crime you didn't commit. You see my point? I think you're future-forecasting that a person is going to do harm. And anybody listening right now is going to go, Greg, you're giving these guys the right to commit suicide. This isn't about suicide. This isn't about guns. It's about your home.

The vehicle and home exception to the Fourth Amendment has been established. There's been a clear distinction between what you can and can't do when it comes to a vehicle and what you can and can't do when it comes to someone's home. And in this case we are talking about an individual's home. So they go in and search, they take the weapons, and then he tries to get them back and they said no. That's where I had the issue. Taking them — look, we have to take into account not just his well-being but the rest of the community, because how many times has it been where they didn't do enough and then that person killed a bunch of people, or killed themselves? I know we can't prevent every single crime, but with some of these issues — and I know people are more concerned about the Second Amendment here — I don't think we need to get to that yet. Let's worry about where this falls in terms of search and seizure, because that's a greater infringement on your rights. That covers anything, not just guns. I thought everything was fine — okay, they have to go and confiscate them temporarily due to the situation. But then it's when he goes to get them back: hey, I went and got voluntarily checked out, I did what you asked me to do, now I want my property back. I would look at it as just his lawful property that they came in and took. Now he wants it back. That's where I had the issue. Yes, I understand there still is a potential threat, but that's the constant conversation: what starts to violate our civil liberties, what freedoms do we have versus what we don't have for the overall greater safety? We do have certain restrictions on our liberties. I can't do something that infringes on the rights of others — it's illegal for me to drive over the speed limit because that's meant to keep the general public safer. So it's a similar issue of what constitutes the greater good for him and society as a whole versus infringing on his civil liberties and his rights afforded to him under the Constitution. That's always in flux. That's why you have to go to court, adjudicate something, and then something either has to get overturned or upheld — and that's going to go through many different levels. But the big thing here too, Greg, is when it gets into mental health issues it can become a gray area. The law is supposed to be clear black and white — until you get in a courtroom. It can change and be interpreted differently. This gets into that gray area. I don't know what the right answer is here because it's a discussion, but I think in this case the Supreme Court is going to — actually, I want to get your prediction first.

I do have an unblemished track record predicting U.S. Supreme Court outcomes for over 40 years, and that's not a joke. Absolutely everything that you said was true — it was from the heart and it's with your understanding of how legal issues have worked in the past and are likely to work in the future. I applaud you for that. I am now going to be the Grinch that stole Christmas and tell you that this has nothing to do with civil liberties and it has everything to do with the misapplication of a relevant law. Let me give you a street example. We come upon a person that's fallen down after a skateboard injury and their knee is a mess, and I've got in my kit betadine and CPR paddles. I choose to put the CPR paddles on the knee saying that it's meant to cure certain things. I misapplied the science. When we talk about community caretaking, we're talking about an exception specifically designed for vehicles. I could quote 25 or 30 case laws from each state where people tried to broaden the definition and bring it into the home and your personal effects. That's what I think the problem is. Applying for a search warrant is the right thing to do in every situation where you have the time, because now you're bringing it to the court and saying, here are the facts that I know, this is what I can prove. You're giving me, the judge, the ability to go into this person's private papers and effects — which is a much higher standard than going into your car. That's why I'm saying forget the Second and Fourteenth in this case — I care more about your rights as a homeowner. Now people are going to say, yeah, but it's in the best interest. I agree it's in the best interest — so figure out the mental health 24-hour hold, figure out a new law. I'm saying we're on the right track here, but it's a clear violation of this gentleman's Fourth Amendment rights, and probably 15 or 16 cases on the docket for tomorrow will show the same thing. The Supreme Court is going to rule that applying for a search warrant to seize those items is not okay. It violates the Fourth Amendment rights because no crime was committed, and you can't predict a future crime.

I would agree with that prediction on the Supreme Court ruling as well. But what you're saying then is that right off the bat, even going into his home was a violation of the Fourth Amendment?

Going back on the second day to take those weapons is a clear violation of his Fourth Amendment rights. Coming in for the domestic violence where the wife called and calming the situation down is fine. But at that point, if they didn't commit a crime — Brian, you could make the statement, hey, your tea kettle's on and if you don't stop it it's going to burn down the house, but I can't take the tea kettle because it may burn down the kitchen. Just because I'm in the house, I can't say, hey, water your plants or your plant is going to die. I think these cops overreached. I think what they did was in the best interest of those two people, but they overreached. The community caretaking exception has nothing to do with weapons. It has to do with a car, and things that happen in a person's car when they were conducting a search of a car, which has a much lower standard. He said that night when they were investigating the case — if that gun was the proximate cause of the worry that they had, they could have taken that gun and they could have taken that ammo. Involuntarily committed the guy and he would have never got it back and we wouldn't be having this talk. What they did is they didn't do anything with the gun that night, which shows the court that it wasn't an important enough issue. They didn't arrest the guy for domestic violence. The guy's in his 60s. If he would have wanted to punch his old lady, he had plenty of opportunity — like 25 or 30 years. They could make that argument that if this was going to escalate, it would have already escalated. And the next day he was being cooperative, it wasn't escalating again. So at that point there should have been no reason for them to even search his home. They could have gone in his home under the emergency exception. She called, he's not answering the phone, he may or may not have made a suicidal remark. And if he's sitting there with bourbon in one hand and the gun on the counter, it's right to take that gun because now it's in plain view. What I'm trying to say is let's not get into my bedroom, let's not get into my drawer if you don't have to, because my Fourth Amendment protects my home. I agree that you had the right to be there the first day and the second day. But if that gun was the issue, why didn't you take it on the first day? I'm saying that you got a search warrant because you thought the gun was important in the case with the Kaczynski-looking guy, and you went in and found some really good stuff. I think on that case it's going to get thrown out, but at least we got bombs off the street. You see the balance? Somebody's going to say, Greg, you're a fraud because you're supposed to be protecting people against suicide. I'm going to protect them against suicide if you give me the right law to do it. This isn't the right law.

That's why I'm trying to give it from the societal perspective — well, Greg, there's safety, there's safety of him, of her, of the community. We don't want anything to happen. It's a volatile situation, there's mental health issues involved, there's weapons involved. That's where a lot of this comes from.

And you're coming from your heart.

But that's what people think. And you're giving a very strict interpretation of what the law says, what you can and cannot do. Not saying whether that's right or wrong — we're saying that's the law. If that needs to change, then that needs to change.

Can I give you an argument? I come into Brian Marren's house — the same exact issues we're facing in the first of these cases, the old couple with the domestic, not the bomb guy who definitely needs to get some help. When you look it up, you'll know what I mean. If you're the Kaczynski-looking guy, I'm just kidding — I love your work because I'm afraid. But listen, Brian, I come in and I think, you know what, he's got a lot of books on income tax evasion, he's got a poor man's James Bond, those are all on the counter. They have nothing to do with the domestic. His wife never brought them up, they had nothing to do with the gun or the reason that I'm there. But I go sit in my car and I go, you know what, I'm going to draft a search warrant because I think this guy's cheating on his taxes and I want to look at his computer. What's next? If you want to say that you're worried for my safety because I might blow my brains out, does that also mean you can take my French knife because I might stab my wife, or take a length of rope? I say here is a place where we clearly define — because they're misapplying this all the way up to the Supreme Court — that there's a need for a law, and it should be laser-focused law.

I don't necessarily think more laws are the answer. With those examples, I would counter and say that gets into the slippery slope. That's why I said we don't always need more laws — because once you pass a law, or once you don't, there's always unintended consequences. There's always something that plays out later that we didn't think would happen, but now we need to amend this or change that or overturn it, because once it goes into practice, that's often where you're going to have spirals you didn't intend in the first place. But your example of walking in and drawing conclusions from literature is very different than a weapon, a gun.

No, it's not. You're in my house. I have the Fourth Amendment right to be secure against an unreasonable search. And here we have not only an unreasonable search, but a seizure.

You have the right against unreasonable search. Is that an unreasonable search?

Yes.

And why? You framed it in the sense of now I'm going to write a search warrant. A search warrant based on your literature is very different than a search warrant based on weapons and statements accompanying those weapon systems. Those are two completely different things.

I could get a judge to sign something saying, based on this information, I believe a law is being broken and the evidence is in this house to put together this case, and if I don't get a search warrant it might be destroyed. Brian, what I'm trying to tell you is the slippery slope here is the more we allow the law to be interpreted in this manner — I get it, and I know why you're saying it and I agree with your statement. But let's take the gun out of the issue. You're in my house. I have the Fourth Amendment right to be secure against an unreasonable search, and here we have not only an unreasonable search, but a seizure.

That's the thing — you have the right against unreasonable search. Is that an unreasonable search?

Yes. And the reason I'm saying that, Brian, is if they would have committed a crime — if he would have said something like I'm going to shoot you with that weapon, and a cop found probable cause or reasonable suspicion, and the gun was part of the evidence chain and he thought the woman was in peril — he would arrest the person. Now you're saying to me that this person might have used that gun to shoot themselves. And I totally agree with you as a human that that's a likely possibility and they should take that gun out of the house. But the law doesn't allow that because that person's house is his castle, his domain, and he hasn't committed a crime. Had he committed a crime on that first day, they would have done something. Now, in the case of the other guy where he makes a comment — why don't you just shoot me — the cops draft a search warrant, go into his house because they want to take his gun for his own safety, and the next thing you know they're taking out bombs. You're going to tell me that those two successful cases — the guy didn't kill himself, the bombs are off the street — are enough to change the Fourth Amendment? I'm saying let's not be in a rush to change the Fourth Amendment. Let's fix a law that says in cases where tempers are high and people are likely to endanger themselves or others, the court allows the cops to take those weapons and sequester them somewhere safe, at a neutral zone, in a safe, wherever, for a period of time until the guy appears before the court and says, look, I'm fine. No reasonable person would be against that. But here they didn't do that, Brian. Two cops on the street thought, I'm going to take this gun and not give it back to the guy, and they don't have that right. It's my house. I got a lot of stuff in my house that is nobody's business. That's all I'm saying.

Well, that brings it back to even what I said earlier — I agree with the initial, okay, we took this out for safety. And then they could have gone, all right, well, we have to give those back now, that's not our right to confiscate them indefinitely. It was taken from his home. At the time they could say, well, we didn't overstep our authority because of the situation, but now you'd be able to argue, well, you didn't take it the night before, you didn't do this or that. They review it and go, you know what, you're right, whatever the situation is. But it didn't lead to them keeping his property and not allowing him to have it back, and that's where I had the issue with it. But you're going back further and saying no, they didn't even have the right to take it in the first place.

It was a warrantless seizure.

But warrantless seizure doesn't mean it's an illegal seizure.

Yes, it does in this case. Brian, what law did he violate? Officers can't choose off a menu they haven't been given. That's all I'm trying to say. To fix this, what we need is an additional exception that says when the greater good of the community or the child in the home — which there are plenty of laws on the books that this could piggyback. But what law did they choose? They chose this goddamn community caretaking exception. That's my only argument to you.

And I think that goes to show you just how shaky this case is because of that. They go, all right, we're going to use this community caretaker standard, which has already been very open to interpretation. The evidence would show that it's so open to interpretation that no one can consistently agree on which way to rule on it. How many cases did they state in the docket with different interpretations of it? It's always highly contested. So obviously we're getting into a very gray area with that community caretaker standard. Because it's not really a standard. It's not clearly defined. It's too open to interpretation. A law can be open to interpretation to a certain point, but this one — it seems like the left and right lateral limits are too wide. That gets into still what the public in general thinks, how these situations are supposed to go versus what the law says is supposed to go, versus the policies and procedures of that department, that agency, that city, that state. There are differences in there, and that's an important distinction. That's why I even opened up this discussion with — the problem is we make more policies or more laws or clearly define things versus giving people the tools and resources to make these decisions so we don't have to deal with it in the courts. Because look, today's the 19th when we're recording this, and this is going to get heard on the 20th tomorrow. This originally took place five years ago. Just so everyone understands how long this takes to get to that level — it's five years, and that's probably fast, depending on how many courts it had to go through first. But that's an important thing to remember here — how do we resolve these situations better? There has to be interpretation on the ground. There has to be a way to determine things at the lowest level possible so that it doesn't go through the courts all the way up to the Supreme Court. This could have been adjudicated right then and there at the local level between the department and the citizen under the purview of the correct laws.

Absolutely.

That's my general opinion on these things. Now, there's a lot of input from a lot of people in different areas that, although it may make sense and have value, does not fall under the law. And that's where I was coming in with the different social issues or mental health issues and how we approach this. And now that's a gun — that's not the Turner Diaries, Greg. It's an actual gun, which is designed and built for one thing only.

Don't start on my Second Amendment.

Well, but that's what I'm saying — it is different than the kitchen knife, because the kitchen knife is made to use in the kitchen. Now, can it also be used as a weapon? Probably, and I'm sure more people have been killed by knives than guns in domestic violence situations — I don't know, I'd take a wild guess. But the point is, it is a little bit different, and everyone sees it from different perspectives. But you're giving a very strict legal perspective, and that's often not good enough for people.

Which is okay by me. Totally agree.

And that's an important thing to highlight in a lot of the topics we cover — we'll take it from the perspective of this is how you articulate it, this is where it falls under, and then people go, well, but that's not fair. And you and I go, I don't like that either, but guess what, that's the way it is. If you want to change the way it is, that's different. Now, this police agency — why do you think they did that? Because there's been other issues in the past. Now people are pounding on city hall doors at the state and federal level saying, hey, we need to curb this and fix this. Let's do that. What can you do right now? And then they go, well, we can do this — and then they overstep their boundaries. I agree that when it gets heard tomorrow, that's what the Supreme Court will say. But I was surprised it made it all the way there. So why do you think it passed through all these lower courts before it got there?

I think it shows that our government and our legal system works, Brian. I think it shows exactly that — certiorari calling up a case because it's demonstrative of a lot of things that are on a lot of people's minds. That's what SCOTUS is for. And Brian, I'm looking forward to seeing what the decision is tomorrow. We should do another update later to talk about that.

Yeah, we'll recap it for sure. I think that would be a good one. But this is another example, and I like how you gave the analogy of mission creep. That happens a lot — the idea of, okay, I was sent here to do this, and then, oh, if I also do this thing here, that'll help me do my specific mission. And then that grows. This is basically how things in Iraq and Afghanistan have been for as long as they have been. But that happens with the law as well — here's what I came here for, and next thing you know...

Even if it feels right — even if it was for the right reasons — if you need a law, write a law. You just can't invent stuff on the street.

All right. Well, I think that's a pretty good interpretation of it, Greg, but we can do some more on these with other cases, because I think it's good for people to hear and understand how they get played out in the courts and how these things actually apply. The appellate courts, state Supreme Courts, federal Supreme Courts — that's where laws really get defined. They get a clearer definition because they get stretched and tested. But it's where precedent comes from, and precedent is extremely important. Which is also why I bring up the point that whether it's a judge making a legal ruling or an elected official enacting and signing a bill into law, those are going to have second and third order consequences that we can't always know. So meaning, when a judge says, okay, I'm going to rule in this way, you've now established legal precedent for which other cases can then reference and say, hey, but back here they ruled this way. That's why the courts in general are — and I don't mean this in an ideological or political way — but are conservative, in the sense that legal precedent should stand. What went before was passed for a reason. So you have to have overwhelming amounts of evidence to have them overturn something. And that's what I mean by conservative — I don't mean who appointed who. At the Supreme Court level especially, they are very much in favor of legal precedent. Whatever the court ruled before, they ruled for a reason. They were smart, well-informed people. We're going to let that stand unless you come in with something so overwhelming — so compelling — that it has to be overturned. I think that's an important distinction for when people go, well, why does it make it all the way up here and then they don't side with it? It's really, really tough to make it all the way up to the Supreme Court and to have it rule in favor or against something, depending on what the actual case is. And I think that's an important thing to remember when we look at all these cases. So what's your prediction?

My final words on this, Brian, are that you can't use a search warrant that was appropriately gained under the Fourth Amendment to resurrect the wrong law that started the search warrant. The community caretaking exception is not strong enough to support the search warrant in either of these cases — the seizure in the domestic situation we were talking about, or the seizure of the bombs when they went in under the caretaking exception to take this guy's gun for his own good. I think it's going to be clear from the Supreme Court, and my thing to you, Brian, is: if you want a law, write a law. Let's just not piggyback on something that's already so shaky and weak.

I agree with your opinion of this case, and I also agree with your prediction on the Supreme Court tomorrow. That's also just because, in at least as much as I can remember, when you predict stuff with the Supreme Court, you've been right on how they're going to side — regardless of your thoughts on the actual case. You're at least good at calling how they're going to call it. But my only caveat to agreeing with everything you said was: I think from a procedural and policy standpoint, what they did first — confiscating the weapons at the time — I would say that's an okay policy. It's where they then kept them and didn't allow him to have them back where I thought the problem was. One, that's just his property, and two, that's where you way overstep. The interpretation at the time of him doing that, you can look back and go, hey, that was wrong, here you go, sorry, we won't do this again. But once they decide to keep them, that was where I had the big problem.

I love you. I admire your opinions. I respect them. I know where you're coming from. But if you come into my house first, it's my guns, then it's my books, and the next thing it's my roller skates — I might fall down the steps on my roller skates. So stay the hell out of my house.

Well, I think on that — on the stay the hell out of my house — we'll end it. Don't forget that training changes behavior. Thanks for tuning in, folks. If you'd like some more information about what we talked about today, you can head to the link on Greg's Patreon site where we've added some more information about what we discussed, as well as some examples of how you can practically apply some of the lessons learned. Please remember to tell your friends about the show and follow us on Facebook at HBPRA. Thanks again and be safe.