Quickies

Skepchick Quickies 1.27

Amanda

Amanda is a science grad student in Boston whose favorite pastimes are having friendly debates and running amok.

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48 Comments

  1. Hi — does anyone have the text of the bill 1581? Based on the description, requiring a warrant for police to make an arrest doesn’t seem out of line. Warrantless arrests are something that the 4th Amendment takes pretty seriously – warrants only require probable cause, and can be gotten by police via a phone call, if there is an articulable suspicion that a crime has been committed. Allowing police to have unfettered right to arrest someone even without probable cause to support a warrant is something that is very dangerous, constitutionally.

    1. The fourth amendment protects against warrantless searches and seizures, not arrests. To arrest someone, a police officer needs probably cause to believe the person has committed a serious crime – this does not, in general, require the police officer to have witnessed the crime. The constitution doesn’t say anything about the specific requirements for an arrest, so it’s written into state and federal law.

      There are problems with police officers who make unlawful arrests, but the fact that you’re choosing this particular issue to bring that issue up strikes me as an attempt at derailment. I suggest no one else reading your comments plays that game. You have your explanation of the legality, and that’s all the benefit of the doubt I’ll extend to you.

      1. An arrest is a seizure, of a person.

        The Supreme Court has ruled that the Constitution expresses a preference for searches, seizures, and arrests conducted pursuant to a lawfully executed warrant (see Mincey v. Arizona, 437 U.S. 385 [1978]). The Fourth Amendment requires not only that warrants be supported by probable cause offered by a sworn police officer, but it also requires that a warrant “particularly” describe the person or place to be searched or seized.

        See – the person or place to be searched or seized. Seizing a person is an arrest, and they are governed by the 4th Amendment.

        There have always been exigent circumstances exceptions to the warrant clause. And, the police officer never has to “witness” a felony in order to have probable cause, and warrants are not generally required for someone to be arrested for a felony anyway. But, a warrant is required for a misdemeanor that doesn’t occur in the police officer’s presence.

          1. http://en.wikipedia.org/wiki/Arrest_warrant

            “In most jurisdictions, an arrest warrant is required for misdemeanors which usually do not occur within the view of a police officer. However, as long as police have the necessary probable cause, a warrant is usually not needed to arrest someone suspected of a felony.” http://www.videojug.com/interview/getting-arrested

            The failure to get an arrest warrant when the person to be arrested is in his own home and there are no exigent circumstances justifying the lack of a warrant is a Fourth Amendment violation. Fisher v. City of San Jose (9th Cir. 2007) 509 F.3rd 952.

          1. Police always need probable cause to arrest. Even outside a home, though, they generally need a warrant to arrest for a misdemeanor that doesn’t occur in their presence. The don’t need one for a felony arrest. They do need one, though, for a felony arrest in someone’s home. Police always need probable cause to arrest, though.

            They can make brief detentions for investigatory purposes, like a “stop and frisk” on less than probable cause, but they still need “reasonable suspicion” that a crime is being committed or contraband/evidence of a crime is possessed.

          2. I never said they didn’t need cause, I only said they don’t need to give it to you. As for needing a warrant for misdemeanors you are simply wrong. You may be arrested and held (for up to 72 hours in most jurisdictions) before charges need to be filed, even in the case of misdemeanors. You can sue for false arrest/imprisonment later but you can be arrested and if you don’t believe me ask yourself what felonies those arrested at Occupy Wall Street committed.

          3. I’m not wrong. You’re confusing, I think, the idea of needing a warrant with the the idea of cause and the idea of filing charges. Police can’t just arrest you for without cause and hold you for 72 hours. They must always have probable cause. They don’t have to “charge” you with a crime right away, because they can take time to accumulate evidence so that they can know what all to ultimately charge you with.

            The cops in the Occupy Wall Street need probable cause to arrest or if it’s a misdemeanor they have to witness the misdemeanor. That abysmal event where the cop pepper sprayed those students, the cops probably could say they witnessed a misdemeanor if the students were blocking a public way or something like that. Misdemeanors are pretty mild things, crime-wise. But, of course, the pepper spraying of seated misdemeanor suspects is ridiculous and way beyond the pale and the cop should be arrested for assault and battery.

            Some of them may be committing other misdemeanors in the presence of the police officers (like rioting, destruction of property, urinating in public if the police see it, or the like). Others may be suspected of felonies. Each case is taken on a case by case basis. So, I can’t really answer for every arrest of Occupy movement persons. I can only say that some were probably engaged in crimes, and others probably weren’t.

            To recap: No, you don’t need a warrant for most arrests outside the home. Misdemeanors that a cop sees can result in arrest right away. Misdemeanors that a cop doesn’t see, but is reported to him, must have a warrant. That’s almost always the way it is in the US.

            Regarding felonies – a cop can arrest on probable cause of a felony without a warrant, but not if the person is in their own home (unless exigent circumstances). The reason that “in home” warrant requirement is important to the discussion here is because most of the domestic violence allegations referred to are alleged to occur in a home.

            That’s my understanding, anyway. If you think otherwise, fine.

          4. So you’re saying that a police officer on the way to Target to pick up (arrest) a suspected shoplifter has to make a stop by the judge and get, with no evidence I might add, a piece of paper? They are much faster then I used to believe. That is simply not the way the world works.

            In the case of the OP, police are allowed to remove the suspected perpetrator from the situation. These laws would reduce that ability for no good reason, that is very anti-victim and in these cases the victim is usually a woman or child. DV is a special case because of the possibility of resumed abuse.

    1. If it is so stupid for police to not have the power to make arbitrary arrests, then why not extend that power to other crimes? Why should police not have the right to arrest based on mere accusation in different contexts?

      Not trying to start a fight. It’s just that I don’t know that “stupid” is an appropriate descriptor here.

      1. Police in the US do not have to wait to swear out a warrant to arrest someone in most circumstance.
        I don’t know where you got the idea that cops have to go to a judge to have the power to arrest suspects.
        Have you ever been arrested? Because, no, they don’t leave, get a warrant, and come back to arrest you. They just arrest you. If someone says you robbed them, and cops find the story credible, you go to jail and wait for your day in court.

        This would require police to treat DV calls differently from, say, calls about drug activity or disturbing the peace or burglary.

        1. But, and I think this is what @saopaulobrasil is arguing, they do need a warrant to enter your premises unless invited in or they have reason to believe a crime is in progress. After they are in the home anything that is in the open can be used as a basis for detention; from the state of any possible victims, to signs of a struggle, to the testimony of the possible victim, anything. I think it would be unwise to give broad-sweeping powers to the police to enter your property.

          Having said that, I don’t think there is rampant abuse of these powers going on and I wonder exactly what the point of these bills was. I don’t see how this affects anyone’s pocketbook so maybe a politician, or an important constituent, fell afoul of the current policy. It seems personal; I see no upside to keeping police from protecting possible victims. Especially when coming from the “law and order” party.

      2. Scenerio:

        Neighbor calls the cops because they suspect the husband is beating the wife, due to the noises they are hearing — screaming, crashing, etc. Cops make it to the home, and they see that the wife is clearly beat up. The house is in disarray and it’s obvious something went down. Cop didn’t actually witness the abuse, but it’s obvious abuse was going on, because of all the evidence before him.

        Why do you think they would need a warrant when EVERY SINGLE PIECE OF EVIDENCE points to the fact that the wife was being abused?

        1. If the police see the signs of possible abuse (if the parties involved are outside say) they would have cause for detention (for now anyway) even if the assumed victim doesn’t press charges.

          I think what @saopaulobrasil is saying is that you are not compelled to open your door to the police sans warrant and if there are no extenuating circumstances (sounds of abuse, an invite by another resident, etc.) the police would not be able to make an arrest without said warrant.

          The forth amendment is written, and has been interpreted, in such a way as to protect you within your home from unwarranted search and seizure but does not prevent the police from entering under any circumstance. They are officers not vampires.

        2. House Bill 1581 makes unlawful all arrests without a warrant, or for violations that were not witnessed by the arresting officer or an officer working with the arresting officer.

          It redefines “probable cause” for arrest without a warrant to mean “probable cause that the officer witnessed the violation”.

          http://www.nhliberty.org/bills/view/2012/HB1581

          What it does is make any arrest without a warrant where the crime was not witnessed by the officer to be “unlawful” and anyone so arrested must be compensated, their legal costs paid for and the record of their arrest expunged.

          As I read the law, if an officer merely hears screams from inside a private residence, that is insufficient justification for the officer to enter the private residence without permission of the owner and without a warrant. The officer has to “observe” a violation being committed, otherwise the officer needs to have a warrant. The wording is limited to “owner”, so if the owner wants to refuse the police admission, then people merely living with the owner don’t have the right to allow the police to enter.

          1. I think you’re reading it wrong.

            Probable cause is not redefined in that link, and it is certainly not redefined to mean “probable cause that the police officer observed an event.” If a police officer observes the crime happening, he never needs a warrant. It’s always probable cause to arrest if the cop sees it.

            The “observe” portion of the law in your link is referring to when a cop is pursuing a person suspected of a felony, and that person runs into a private home. If the cop is pursuing him, he doesn’t need a warrant, he can continue the pursuit and bust into the place and get the guy.

            It says, “No peace officer shall enter the dwelling or other private property not accessible to the general public without a warrant or consent of the owner, except where the peace officer has observed a person who has committed a felony or misdemeanor in the officer’s presence enter such dwelling or private property and the officer is in hot pursuit of the person.”

            The warrant requirement is always subject to “exigent circumstances” and where a police officer hears screams from inside the home, even under the new proposed bill, he would not have to wait for a warrant. Exigent circumstances can be “screams” indicating that something bad is going down right now and there is no time for a warrant, among many other things.

          2. I think your reading of it is mistaken. If you look at the whole law that is being amended,

            http://www.gencourt.state.nh.us/rsa/html/LIX/594/594-mrg.htm

            It no longer has any provisions for arresting anyone without a warrant unless the arresting officer observed the violation.

            The previous provision that allowed for arrests without a warrant has been changed to limit those arrests to only circumstances where the officer has probable cause that the officer observed the violation.

            The officer can pursue someone inside a house if the officer observed the person commit the violation and then observed the person enter the house. If the officer suspects the person committed the violation but didn’t observe it, then the officer has to get a warrant to arrest the person.

            It strikes out all that stuff about having “probable cause that a person has committed abuse” and replaces it with “probable cause to believe that the person to be arrested has committed a felony in the officer’s presence”.

            HB 1581 requires a warrant to arrest someone under the violation of an order of protection even if the officer observes the violation.

            I agree that it is crazy, but that is what the proposed law says. If the officer doesn’t observe the violation or have a warrant, the person can’t be arrested.

            NH House Bill 1608 is a little bit more subtle.

            http://e-lobbyist.com/gaits/text/507561

            What it does is change the threshold for arresting someone for violating an order of protection, which then affects the following provisions new text added:

            “173-B:9 Violation of Protective Order; Penalty. –
            I. (a) When the defendant violates either a temporary or permanent protective order issued or enforced under this chapter by committing an act of abuse, prohibited contact, or an offense against the plaintiff or person specified in the order, peace officers shall arrest the defendant and ensure that the defendant is detained until arraignment, provided that in extreme circumstances, such as when the health of the defendant would be jeopardized by the temporary detention, a judge in response to a request by the arresting law enforcement officer or agency, may order an alternative to detention pending arraignment. Such arrests may be made within 12 hours without a warrant upon probable cause, whether or not the violation is committed in the presence of a peace officer.
            (b) Subsequent to an arrest, the peace officer shall seize any firearms and ammunition in the control, ownership, or possession of the defendant and any deadly weapons which may have been used, or were threatened to be used, during the violation of the protective order. The law enforcement agency shall maintain possession of the firearms, ammunition, or deadly weapons until the court issues an order directing that the firearms, ammunition, or deadly weapons be relinquished and specifying the person to whom the firearms and ammunition or deadly weapons will be relinquished.”

            What this does is change the threshold for arresting someone violating an order of protection which then affects whether or not the police can take the perpetrator’s guns away. It also now requires a warrant, even if the officer observed the violation.

  2. The domestic abuse thing is horrifying. :(

    On another note: that study into gender preferences of toys is twisting my right nostril. I guess I’d have to read more into the study, but we don’t actually know why the critters are selecting the toys. Seems disingenuous to apply gender modes to the selection processes. What if they replaced the toy truck with a GI Joe?

    1. I read into the study to see if any red flags were raised for me. The biggest was that the significance of their findings was low, and in some cases depended on the type of analysis used. This doesn’t mean the results are wrong, but it does mean that we shouldn’t take this study as the final word on the subject. Also of note, the authors compare their study to another which found the opposite effect, but through a somewhat different protocol. They point to the fact that their study better matches results in human children as evidence that their study is superior, so we know where their bias lies.

      The study also didn’t mention anything about blinding the people categorizing the monkeys, and we don’t know if the monkeys played with toys unsupervised or not. If they were supervised by a human who knew their gender, for instance, they could easily pick up on subconscious cues. Of course, I don’t know whether or not this was the case; I simply wish they’d made it clear if it was blinded or not.

    2. I think this is yet another case of “small result, interesting outcome, more research needed” being reported as “done deal”. Of course, we shouldn’t dismiss it just because it says something we wish it didn’t (The Measure of Man anyone?) but it also shouldn’t, at this point, be seen as “proof” of much of anything.

  3. As a police officer in Canada, I am horrified by this domestic assault bill.

    I mean, I don’t understand the fucking mind set here. WHY limit police power with JUST domestic assaults? If you’re going to make it so that an officer needs a warrant whenever he wants to arrest for a crime he hasn’t seen, wouldn’t it make sense to at least have some fucking consistency?

    Because the bill these fucktards are trying to put forward would be equal to an office walking into a store, seeing some guy running outside with a TV tucked under an arm, witnessing store clerks running after him, yelling at the officer to stop him…and the officer not doing a damn thing, because he needs a WARRANT.

    Nah. This isn’t hatred of women at ALL.

    1. The scenario you describe about the store is not analogous at all, because if the police show up while abuse is in progress, or while a woman is being chased, they would not need a warrant even under the new rule.

      I think the new rule, after reading up on it, is meant to handle situations where police show up and there is no obvious sign of abuse, but someone is pointing the finger at someone else. And, the law as it stands now pretty much REQUIRES someone to be hauled away to jail.

      While I am not taking a side here on this particular bill, yet, I think calling them stupid, woman hating, fucktards, is a bit premature.

  4. Police always need probable cause to arrest. Even outside a home, though, they generally need a warrant to arrest for a misdemeanor that doesn’t occur in their presence. The don’t need one for a felony arrest. They do need one, though, for a felony arrest in someone’s home. Police always need probable cause to arrest, though.

    They can make brief detentions for investigatory purposes, like a “stop and frisk” on less than probable cause, but they still need “reasonable suspicion” that a crime is being committed or contraband/evidence of a crime is possessed.

    1. So, you seem to have had next to no direct experience with being arrested.

      The way you think things work is not the way they work at all. If police suspect that a crime has been committed, they are able to make an arrest. This has, indeed, led to many, many abuses by police.

      Also, the requirement that an OP be broken three times before an arrest can be made defeats the purpose of restraining orders.

      You also seem to be mistaken about how a typical DV call might go. The police have a duty to be sure that everyone in the home is safe.

      Here’s an overview of DV and orders of protection.
      http://www.theiacp.org/LinkClick.aspx?fileticket=ADFIzeWaYnE%3D&tabid=87

      And an NIJ report on law enforcement and DV.
      http://nij.gov/topics/crime/intimate-partner-violence/practical-implications-research/welcome.htm

      1. I’m going to back away slowly here. I’ve seen a lot of people on this website get personal and very abusive. You haven’t, but the little chides about “what I seem to know” or have experience with is not something I really want to involve myself with.

        Bottom line – my summary of the law as to what is required for making an arrest is correct. And, to be clear, I’m fully aware that the laws were changed relative to domestic violence to eliminate warrant requirements where those allegations are present. That’s what I was referring to when making the post to which you responded.

        Anyway, good day.

        1. It really does seem as if people are so eager to pan the law that they are deliberately misreading you. It looks like this:

          saopaulobrasil: X is the case.

          respondant: No you are wrong, because X is the case.

          Example:

          saupaulobrasil: “… they still need ‘reasonable suspicion’ that a crime is being committed or contraband/evidence of a crime is possessed.”

          punchdrunk: “The way you think things work is not the way they work at all. If police suspect that a crime has been committed, they are able to make an arrest.”

          This sort of thing is happening a lot around here lately, and it has really changed my impressions of the commenting environment. I really don’t mean to be a tone troll, but I’m wondering if maybe we should all take a step back in discussions and make sure to ask: “is there evidence X is not making this argument in good faith?” and “am I evaluating what X has said or responding to what I believe is an unstated premise? Is this distinction clear in my response?”.

          I really like this community and I’ve learned a lot here, but lately reading threads is making me uncomfortable.

          1. Even outside a home, though, they generally need a warrant to arrest for a misdemeanor that doesn’t occur in their presence.-saopaulobrasil

            The way you think things work is not the way they work at all. If police suspect that a crime has been committed, they are able to make an arrest.-me

            Please don’t change the context.

          2. I’m not changing the context, and don’t deflect. Is was not obvious you were addressing that point, since you did not specify whether you were talking about misdemeanors (which was the topic in question) or felonies (which saopaolobrasil conceded did not always require a warrant). If talking about the latter, my comment makes sense, since yours is self-contradictory. If talking about the former, you just countered a citation with an assertion and no evidence…I suppose I was just being charitable.

  5. The article about the impact of biology on gender leaves much to be desired.

    First, the author makes this claim:
    “For example, girls with a particular genetic condition that exposes them to high prenatal levels of androgen often show “masculine” toy preferences, even when their parents strongly encourage them to play with female-typical toys.”

    The study they are referencing (Berenbaum & Hines 1992) and studies like it have been critiqued (most notably in Cordelia Fine’s recent book Delusions of Gender) as being vague on what, exactly, they are measuring. Are the girls with CAH drawn to particular qualities of the toys, the activities associated with the toys, the fact that the toys are associated with boys? The inventories used to make these claims are problematic because they don’t just measure the types of toys the children prefer, but also include other masculine/feminine preferences (e.g., do girls like jewelry, dress up in girly clothes, pretend to be feminine characters, etc.). Also, Cordelia Fine mentions that researchers have actually removed some toys that were considered masculine toys (specifically Lincoln Logs) from studies like these because girls were choosing them too much. So, problems with the methods and researcher biases.

    As for the rhesus macaques, I have issues with the study. First, the assumption that toys have inherently masculine or feminine qualities is absurd. Humans assign those meanings to the objects. There is no inherently masculine quality in a toy truck. There is no inherently feminine quality in a doll. So, it is problematic to assume that monkeys have the same meanings attached to these objects–or that they have any meanings attached at all. Cordelia Fine also addresses these studies in her book. She writes:

    “Can we safely move to the conclusion that the higher levels of prenatal testosterone normally seen only in males increases interest in boyish toys that move or stimulate visuospatial skills, and reduces interest in toys related to babies and nurturing? These are two separate effects that are hard to disentangle when you compare interest in a moveable boyish toy relative to interest in a nurture-able girlish toy. Although male rhesus monkeys preferred the wheeled toys over the plush ones, because there was no gender-neutral toy condition we don’t really know whether rhesus males were especially drawn to the wheeled toys or simply less interested in the plush animals.” (p. 125, emphasis original).

    As I’m sure you can imagine by now, I also have issues with the ways the chimp study has been reported. =P

    First, the implication that chimps can act as a window into the past of human evolution is problematic. Chimps have also had millions of years of evolution since we split from our last common ancestor, so the best we can hope for is a parallel to our own evolution. It’s possible that these behaviors are similar to ours because they evolved in both species separately. I am cautious of jumping to conclusions about shared ancestral gender differences.

    Many of the reports take the idea that young female chimps might practice maternal play as “natural” (biological) because they are non-human primates. But, chimps are highly socialized, and it is possible that this behavior is learned, even when the adult chimps don’t engage in it. It can be learned from siblings or peers. It’s also not something that has been observed in a wide variety of chimp troops.

    In the end, the notion that these studies demonstrate a “natural” preference for certain toys is, at best, highly problematic. (By the way, I highly recommend Cordelia Fine’s Delusions of Gender to anyone interested in the neuroscience behind claims of differently sexed brains. It’s a fantastic book.)

    1. @Will:
      Spot on. Well said.

      Are these monkeys even capable of recognizing the dolls as dolls? Maybe they just think plush has a pleasant texture. The singular evo-psych interpretation is very irksome.

      Another issue I have with the studies and the way they are reported is the unspoken assumption that the existence of such preferences would somehow justify the social pressures we exert on our children.
      So what if those preferences were to exist? How the hell would that justify encouraging or discouraging them? Is-Ought fallacy much?
      If my hypothetical daughter prefers the robot toy, all I would accomplish with discouraging that choice is just that: discouraging it. The preference doesn’t magically go away. But she learns that choosing her favourite toy will lead to punishment.

      Yet another issue is that if it is true that these animals do no have socialisation, then whatever results the studies come up with are pretty much irrelevant to humans, who do have socialisation.
      Whatever is natural to chimps or rhesus monkeys is not automatically natural to humans. It’s not an apt analogy.
      And again, even it it was, so what?

      Not to mention the implied reduction of the entire female population (of any species) to a function of their genitalia… *sigh*

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