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Part 2: Obama talks about the law and Trayvon Martin

radx says...

Wouldn't the stop-and-frisk program qualify as one of those issues?

Or how about putting American citizens under surveillance, "not because of charges of wrongdoing but ethnicity"? Would that quality?

I'm only asking because Obama spoke out in favor of NYT police commissioner Ray Kelly as the new head of DHS and Kelly's actions just ooze racial profiling.

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Top DHS checkpoint refusals

DrewNumberTwo says...

I'm sorry, did I simplify my internet post a bit too much? Obviously law is a complex subject and speaking about it in broad terms will not be exact. Let me reword my statement. If refusing a search is reason to search, then we never had the right to refuse a search in the first place.

These DHS stops are already spreading to other states and modes of transportation, and they're not just looking for illegal immigrants. And they're no different from regular police check points, they're just another agency to deal with. I understand that stops like these are required to be advertised, but when I'm driving 100 miles I have no idea how to check the entire path that I might take to avoid a stop in the middle of the night, in The Middle of Nowhere, Georgia.

And when the Patriot Act was enacted, I was bitching about it and being ashamed of my country. And no, I don't fly.

Top DHS checkpoint refusals

Jaer says...

The stops are shown on various websites (local authority, news, etc). So people who are in those areas shouldn't be surprised by them. And if you're so "upset" with the checkpoints, or sobriety points, or anything that is similar to this (or just checking into a flight, where they check your ID as well, do you *not* fly?) you can easily check online where they're holding the stops. It's required that they announce/post where the stops are being held. They expect and hope that not everyone has the presence of mind to check where the stops are at, that's the *point* of the stops, to find people who are not of legal status in this country.

And I bring up Illegal Immigrants, because that's the reason as to *why* these checkpoints exist. (hence why in the video they ask what the persons citizenship is)

As for the probable cause debate;
As several law journals suggest (e.g. http://legal-dictionary.thefreedictionary.com/probable+cause ), probable cause is subjective, there can be many instances of probable cause, but there can also be a lesser form called "Reasonable suspicion", which could essentially be used in this instance.

You simplify things way too much, the law isn't just a clear cut black and white instance. The law isn't simple, you can't quantify it in a simple explanation, and lawyers, law enforcement, judges (etc) know all this. Laws aren't water tight either, many contradict each other, or can be interpreted differently (which is why there's a supreme court, they dictate the wording and meaning of the laws).

Edit: I don't know how I got into defending the DHS or the checkpoints, as I said, I think the stops are ridiculous, and probably won't do anything worthwhile. But at this point, we're just going in circles. in the end, this video is just over-sensationalism at it's best.

Are the stops irritating to civilians in those areas (which are *very* limited, and not some wide spread epidemic as many seem to think it is)? Of course they are. Are they some form of "police state"? No, they're not (see examples above), they're localized stops, where the states have enacted laws allowing DHS / Law Enforcement to literally stop *anyone* they want and question them regarding citizenship.

last edit them I'm done, I swear
Where were all these kids and "freedom fighters" when the Patriot act was enacted, the illegal wiretaps, bugging and tracking of students and civilians happened? Oh.. that's right it was to "protect" us from the Terrorists. Everyone was OK with that....

DrewNumberTwo said:

Refusal to allow a search is never probable cause. If it was, it would be impossible to refuse a search. Probable cause must refer to a specific law that is being broken. For instance, the smell of marijuana smoke suggests that drugs are in your possession, and the screaming of a person in your trunk suggests that you've kidnapped someone.

I don't know why you keep bring up illegal immigrants. That's a red herring. It's true that complying with the search would have been faster. So what? And again, not everyone knows where these stops are going to be. I don't constantly check the newspaper for word of checkpoints, especially when I visit other towns.

Top DHS checkpoint refusals

aaronfr says...

@Jaer not sure why you think morality is not involved in the law. The laws, the courts and the police agents are there to serve justice (IIRC).

via Wikipedia:
'Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, equity or fairness'

Also, you make the argument from a point of convenience but several of these people are willing to bear the inconvenience to make their point. Non-compliance is a form of activism and the fact that they are all let go without answering the questions or submitting to searches shows that the DHS agents understand that what they are requesting is actually outside the bounds of our rights as they are generally interpreted. They are simply seeking compliance.

Which brings me to my final point. My German girlfriend overheard the video and then came to sit by me and watch it. She was fascinated with the video and at the end, she commented on the several references to Nazi Germany.

'Americans don't really know anything. That's not like Nazi Germany, it's like East Germany. The only difference is the Stazi got results and nobody dared to resist their constant intrusions so directly.'

She should know, since she lived there until the wall came down. Non-compliance against an unjust act/request is a moral duty. Damn your convenience.

Top DHS checkpoint refusals

Jaer says...

I guess first off, I should explain that I'm not in full support of these searches/stops, but again, if I were stopped and asked questions, I'd just give them my ID and be on my way. Which, actually I have been before (just not in this context).

Yes, but Identified and searched are two separate instances and rights are not forfeit for giving that information. They must still have probable cause to open, and search. By acting like the kid(s) in the video, would possibly give an officer suspicion that there may be something to hide, and therefore, probable cause (although that's a very very loose explanation/definition). Also the plain sight rules apply, and given that this is essentially an extension of the border searches, I wonder if the Border Search exception could apply (given that it's the DHS/Border patrol holding the stops).

Basically what I'm saying is that, while yes, the stops are annoying, this is what you get if you cry/whine about illegal immigrants. Also, like I said before, if the kid just said "here's my ID" he would've been back on the road in likely seconds rather than giving the officer an attitude.

Oh, and "moral" is subjective, your morals may differ than mine, or someone else, bringing morals into a law debate doesn't support your argument. And until the 1979 ruling is overturned regarding these checkpoints, they won't stop. It's just best to take another road if you don't want to be stopped in the checkpoint.

aaronfr said:

1. You are correct that there is not a rights violation, which is why none of these people are seeking damages. However, as soon as they allow themselves to be identified or searched, they are surrendering their rights under the 4th amendment. Furthermore, if the DHS officers state that they are being detained and are not free to go, and use force to make that so, then they are violating their rights for the same reason.

2. Many things have been "legal" in the past and viewed as "constitutional" that have long since been overturned. You don't have to dig too far into the historical grab bag to find some examples. Slavery, internment of Japanese citizens during WWII, poll taxes, spousal abuse, etc. Just because something is legal doesn't make it moral. Likewise, the findings of a particularly conservative and activist Supreme Court does not mean that an issue is actually in keeping with the constitution. Don't forget that our constitution as it was originally written included the proclamation that 'non-free' men only counted as 3/5ths of a person. I mean, you don't get more constitutional than that.



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