The assumed connection between drug dealers and their guns has long been a fixture of law, justifying the approval of no-knock warrants, night-time warrants, searches under the protective sweep exception, searches for the hell of it, called frisks even though they involve emptying pockets of small, soft baggies of things, and any number of emanations and penumbras where drugs are involved.
But for the most part, judges put in a little effort to try to pretend that there is some articulable fact, some specific detail, that elevates the routine to the lawful. In a bold display of honesty, Maine Senior District Court Judge George Singal breaks free of the chains. Via Brad Heath, Judge Singal eliminates the “middle man” in United States v. Shaun Wray.
The First Circuit case upon which Judge Singal relies may win the award for using the word “commonsense” more than any other decision ever in the history of law, revealing that the First Circuit had absolutely no legitimate facts or argument to offer, so it punted. That said, the issues of the drug/gun connection were peripheral to the Rivera opinion, barely dicta. But precedent is for kids when you need something to hang your robe on.
Unlike every other judge put to the test, Judge Singal wasn’t going to strain himself trying to find some fact, some detail, something, anything, to give rise to a connection between the probable cause of drug dealing and the blind assumption that wherever there’s drugs, there’s guns. Who wants to be that judge forced to mumble, something, something, guns? Judge Singal is no kid, and he doesn’t have time to waste on fruitless analysis, parsing of facts, probable cause.
Before you think ill of Judge Singal for short-circuiting legal doctrine by assuming that where there’s smoke, there’s fire, understand that the gun/drug assumption is so long-standing, so deeply embedded in the mythology of the Drug War, that it’s been taken as a given for decades. Drugs equal violence. Drugs involve guns. Drugs, drugs, drugs means guns and death. What judge wants to be the guy who denies a no-knock warrant because of the lack of any articulable basis to believe there are guns in a stash house, only to have the cop at the door blown away from the shotgun blast?
But because we demand that judges be sufficiently limber to engage in the rhetorical gymnastics necessary to take what’s given, the allegations drawn as artfully as possible to create the suggestion of facts without actually saying anything, and without actually demonstrating that anyone actually knows anything, and mold it, shape it, bend it and twist it into a credible suggestion that there was some evidence, even the tiniest bit, to demonstrate that they didn’t just pull the connection between drugs and guns out of their ample butt, we risk grave harm.
No, no, not to the law, but to the judge. These aren’t spring chickens, you know, and they can pull something, a shoulder, a knee, a synapse. Do you really want to see an old guy in pain?
Does that mean the gun/drug connection is a lie, a myth, an outlier that rarely if ever happens? Well, no. It’s pretty common. Not so much that drug dealers are all vicious killers, but when you’re in a criminal business that involves big money, there are others who might try to take that away from you. Guns provide a measure of self defense, even if the dealer isn’t foolish enough to use it affirmatively against anyone else, and particularly not with the death wish that comes from pointing a gun at a cop.
So does it happen that drug dealers have guns? Sure. A lot? That’s hard to say, but it would be fair to say enough. Then is the assumption that a warrant for a drug dealer is close enough to assume the bad dude is armed? Well, maybe, but that’s not the test.
The Fourth Amendment still has the whole “probable cause” thing happening, even though the judiciary has put in a great deal of effort focusing on the word “unreasonable” and ignoring the words “warrant” and, well, probable cause. It may not be much of a test anymore, even though a lot of people have lately reached the conclusion that reasonable suspicion is just a millimeter away from beyond a reasonable doubt (length challenges have long been a fixture of jurisprudence and sexual rituals). While probable cause may not be much, it still requires something beyond mere assumption.
Or at least it used to, before the First Circuit discovered that by uttering “commonsense” over and over, and over and over, you don’t actually need any reasons at all. No facts. No arguments. No muss. No fuss.
So in his dotage, can anyone blame Judge Singal for avoiding the very serious potential of personal injury by being forced to endure the laborious task of relying on facts, or manufacturing them out of nothing when the agents fail miserably to do their job? Give the guy a break. After all, it’s just common sense.