Tuesday, January 1, 2013

The Fourth Amendment

     The Fourth Amendment is part of the Bill of Rights, which in turn is part of the United States Constitution.
     The Fourth Amendment protects Americans against invasion of privacy, especially from searches and seizures by government agents.  In most cases a warrant must be obtained from a judge who thereby permits agents to search, seize, forfeit or arrest an individual or corporation.
     Here's the actual wording of the 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.

     A key problem surrounds the interpretation of the terms "unreasonable" and "probable cause," and therein lies the history of this amendment.
     The authors of our Constitution used as a basis for outlining its tenets their understanding of English law.  Concerning the privacy of the state's inhabitants, Sir Edward Coke said:

"The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose."

In one important case, Entick v. Carrington (1765) the Early of Camden ruled that a search and seizure of a British author who had been accused of writing "seditious papers," had been unwarranted because the king's henchmen "lacked probable cause to even justify the search.  Entick established the English precedent that the executive is limited in intruding on private property by common law" (Wikipedia, "Fourth Amendment").
     Our forefathers were concerned about the possibility that, however they structured the Constitution, men in power might become so bloated with authority that they would misuse it, and the Bill of Rights was formulated with the express purpose of protecting individuals against such big-headed, gun-wielding representatives of the government, those badge-wearing public servants (we've all experienced them) who see themselves as avatars of governmental power with a capital "P" rather than as humble agents for the good, purposeful and mostly passive oversight of the rights of Americans.
     In its original form the Fourth Amendment applied only to federal raids, but in 1961, with the case Mapp v. Ohio, 367 U.S. 63, the Supreme Court said that states must abide by the Fourth Amendment, too.
     My clinic was raided by federal agents, but there were state agents there, too, as well as members of the Gainesville Police force.  My lawyer, Mark Thomas, said this meant that the government was taking a shotgun approach, looking for anything and everything (perhaps because its agents feared they would find nothing, and didn't want to embarrass themselves?)--"If they can't find any federal laws you've broken, they'll surely be looking for civil offenses."  This means that if the federal government didn't have cause for the raid, they hoped the State of Florida could find something to apprehend.
     Given the hieroglyphic complexity of the coding and billing requirements for Medicare (federal) and Medicaid (state) insurance claims, it must have seemed to the federal agents and their supervising prosecutors--and to the corresponding state agents--that they could hardly fail to find something I did wrong, something, somewhere in the fine print of all that writing we docs are forced to do whenever we send a bill for seeing and treating a patient.  Where is it, I keep asking?  Come on, I want to say, the party's over, open the package!  What did I do wrong?  Does whatever you "found," then, justify the search, seizures, forfeitures, guns, and pomp of that sunny June day?
     What is a "reasonable" search and seizure?
     Did the government violate my Fourth Amendment rights by invading my clinic "beyond a reasonable cause," without evidence to support an suspicion that I was committing a criminal offense or had in the past committed such offenses, and thereby posed a threat to society?
     Not only are government officials forbidden from raiding a place without reasonable suspicion, but they "may not detain an individual even momentarily without reasonable and articulable suspicion" (Wikipedia).  I am told that "momentarily" means something like fifteen minutes.  During the raid on Colasante Clinic, my employees were detained for three to eight hours--far in excess of the law, unless they had "articulable suspicion."  Where is documentation of their suspicion?  In what way could a file clerk or nursing assistant be considered so suspicious their rights could be violated in the way they were on June 16, 2011?
     On that day, federal agents had obtained a warrant for a seizure, from Magistrate Judge Jones.  Who, then, should be held accountable for the mayhem at my clinic, and for subsequent damages to my professional reputation?  The prosecutors, Corey Smith and Bobby Stinson?  The FBI agents, Robert Murphy and Carissa Bowling, and their three dozen crew?  Judge Jones himself?
     My lawyers tell me that it's very easy to obtain a warrant for a search and seizure from a judge.
     Why should it be so easy?  Does the judge not require a heavy enough burden of proof from government agents before granting a warrant?  Don't our prosecutors, agents and judges appreciate the extent of the damage they do when they conduct searches and seizures--damage to a person's reputation in the community, and self-image, and willingness to continue working, and faith in our justice system?
     Do prosecutors and agents exaggerate what they think they know, so that judges have no recourse but to grant warrants as a protection for society?  Aren't judges smarter than that?   Or are prosecutors banking on winning, calculating the odds:  Look how much we can take!  It's likely this little lady will be cowed by our authority and weaponry!  She won't retaliate, especially if she's got something to hide, however small.
     Sorry, guys.  I don't have anything to hide.  And I'm not a "little lady."  I'm a hardworking citizen, like you, with rights, just like yours.  And one of my rights is to be protected from your overzealous, gun-twirling, "I'd shut you down today, if I could," invasion of my clinic, my "castle and fortress."
     What if I'm not a criminal?  Then what?  What?  Do these agents simply go back to their offices and calculate their odds with some other innocent American citizen--someone who's got enough cash in the bank to seize, someone who's life and rights are irrelevant to a government hell-bent on flexing its muscles?
     I'm rolling the smooth surface of the Fourth Amendment in my palm, like a polished pink crystal-- rose quartz, perhaps, which has metaphysical qualities.   A violation of the Fourth Amendment has big implications:  if the government can't prove it had enough evidence to justify its raid and forfeitures--and I doubt if it can--I may have recourse to restitution, whatever that might entail.        


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