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home : opinions : opinions August 2, 2014

3/11/2014 11:27:00 AM
What would the Founders do?
By Dillon Jones


 A few months ago, some of my colleagues and I were discussing a bill recently introduced in the General Assembly, and someone remarked: “Wonder what the founders would think of that.”The more we thought about it, the more it seemed like an entirely relevant question to ask of any bill. Sure, the nation’s founders wouldn’t recognize many of the details in a modern piece of legislation. But they had firm views about the principles underpinning almost any bill introduced in a modern legislature, and in many cases, it’s easy to find out what those views are. Take House Bill 3059. This refreshingly short and uncomplicated bill would make it illegal for law enforcement officers to seize cell phones, video recorders, or other electronic recording devices at the scene of a law enforcement investigation or lawful arrest unless use of the device “substantially impedes or interferes” with the investigation or arrest.
Officers who violate this law would be guilty of a misdemeanor and be fined up to $500 or imprisoned up to 30 days. Presumably the bill is a response to the numerous instances around the country in which law enforcement officers have confiscated cell phones and video recorders being used to film officers during traffic stops and similar occasions. Some of these zealous officers have even arrested the bystanders using the recording devices. So where would America’s founders stand on a bill like this? Leaving aside their ignorance of “electronic recording devices,” the answer can be found in the U.S. Constitution itself, specifically in the Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Further evidence is found in the Virginia Declaration of Rights, drafted largely by George Mason. That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted. The founders believed in the right to one’s own property, which today would include cell phones and other recording devices, and in the concomitant right not to have it seized without a warrant – a warrant, moreover, that shouldn’t be issued without probable cause and other specific provisions. On the other hand, the American founders would likely take exception to the bill’s one caveat. These devices can’t be taken, the bill says, “unless the use of the device substantially impedes or interferes with the law enforcement investigation or lawful arrest.”
Law enforcement officers have tended to stretch the meaning of phrases like this to mean just about anything – just as the Supreme Court has stretched the meaning of Constitutional provisions like the “Commerce Clause” and “General Welfare Clause.” Whether some lawmakers and law enforcers like it or not, the Fourth Amendment hasn’t been deleted from the Constitution and can’t just be thrown aside as somehow obsolete or unnecessary. And in an era in which the Constitution was thought of as an actual set of limitations on government – not as a set of good ideas or as a rough guideline – a bill like H. 3059, caveat notwithstanding, would have been eagerly supported by the men who signed the nation’s founding documents. Now if we can impress on our elected leaders the importance of thinking along these lines, we’ll be making some progress.




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Galloway Mosley
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