‘Everything Has Been Criminalized,’ Says Neil Gorsuch as He Pushes for Stronger Fourth Amendment Protections

By Damon Root, Reason

In 2019, the California Court of Appeal, 1st Appellate District, ruled that a police officer may always enter a suspect’s home without a warrant if the officer is in pursuit of the suspect and has probable cause to believe that the suspect has committed a misdemeanor. This week, the U.S. Supreme Court considered whether that ruling should be overturned.

Justice Neil Gorsuch seemed to have a problem with the lower court’s decision. Under the common law, Gorsuch pointed out during oral arguments in Lange v. California, the police did not “have the power to enter the home in pursuit of any and all misdemeanor crimes.” The framers of the Fourth Amendment built on that common law understanding. So “why would we create a rule that is less protective than what everyone understands to be the case of the Fourth Amendment as original matter?”


Categories: Law/Justice

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  1. “But “what qualified as a felony at common law,” Gorsuch countered, “were very few crimes and they were all punished by the death penalty usually.” By contrast, Gorsuch stressed, “today pretty much anything or everything can be called a felony.” ”

    Gorsuch is quite correct. in the late 1700’s, a ‘felony’ was almost invariably a death-penalty offense. Today, a ‘felony’ tends to be defined as a crime punishable by over 1 year, in prison. Big change.
    See also Tennessee v. Garner.

    “White examined the common law rule on this matter and its rationale. At common law, it was perfectly legitimate for law enforcement personnel to kill a fleeing felon. At the time when this rule was first created, most felonies were punishable by death, and the difference between felonies and misdemeanors was relatively large. In modern American law, neither of these circumstances existed. Furthermore, the common law rule developed at a time before modern firearms, and most law enforcement officers did not carry handguns. The context in which the common law rule evolved was no longer valid. White further noted that many jurisdictions had already done away with it, and that current research has shown that the use of deadly force contributes little to the deterrence of crime or the protection of the public.”

    “On the basis of the facts found by the district court, Hymon had no reason to believe that Garner was armed or dangerous. The Court ordered the case remanded for a determination on the liability of the other defendants.”

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