Recognizing the Debts We Owe

We Owe Those Who’ve Gone Before – and Who’ve Sacrificed So Much That We Might Have the Blessings We Do – a Debt of Gratitude This Memorial Day

By Ken K. Gourdin

Writing for the Deseret News, James F. Burns describes a different kind of national debt with which Americans should concern ourselves, especially this Memorial Day. (See James F. Burns, “National debt not just financial issue – honor owed to those who gave us freedom,” Deseret News, accessed on line at http://www.deseretnews.com/article/865629077/National-debt-not-just-financial-issue-2-honor-owed-to-those-who-gave-us-freedom.html on May 25, 2015). He describes a soldier landing at Normandy during World War II, writing that we owe that soldier “a debt of gratitude for defending our freedom from foreign domination.”

He describes a delegate to the Constitutional Convention of 1787. He points out that the aim of the delegates was to “shape our shared governance into a form for maximizing individual liberty while providing for our national defense and other necessities where joint action is optimal,” writing that we owe the delegates a debt of gratitude “for giving us a governmental model that’s the envy of the world.”

If one doubts Burns’s foregoing assertion, writing in 1992, former University of Chicago Law Professor and Utah Supreme Court Justice Dallin H. Oaks noted:

The United States Constitution was the first written constitution in the world. It has served Americans well, enhancing freedom and prosperity during the changed conditions of more than two hundred years. Frequently copied, it has become the United States’ most important export. After two centuries, every nation in the world except six have adopted written constitutions [endnote omitted], and the U.S. Constitution was a model for all of them.

Dallin H. Oaks (February 1992), Ensign, “The Divinely Inspired Constitution,” accessed on line at https://www.lds.org/ensign/1992/02/the-divinely-inspired-constitution?lang=eng on May 25, 2015.

Continuing his assessment of a different kind of “national debt,” Burns writes of two nurses, both angels of mercy in the highest sense, one who cared for a Confederate soldier and one who cared for a Union soldier during the Civil War, saying that both women “helped us survive a national crisis that led to freedom for all Americans and kept us welded together as one nation under God. We owe these women a debt of gratitude for selfless sacrifice.”

Nor, Burns notes, is our debt of gratitude limited to those who served on the battlefield. Had not people on the homefront kept their critical needs supplied, they would not have been successful in their battle for freedom. Burns writes, “We owe a debt to all our producers, the Ed Burnses and Rosie the Riveters, whose sacrifices sustained our supply chains during time of war.”

Further, Burns notes the crucial contributions of civic-minded individuals who perform such public service as serving as coaches, mentors, and tutors, who vote and are otherwise active in the political process, including serving their communities in elected and appointed offices. These people, Burns notes, “form the fabric of a civic and moral-minded citizenry that the framers of our Constitution knew was needed to sustain liberty and freedom in an open society.”

Burns concludes, “let us be more aware of this second and deeper national debt. We stand on the shoulders of sacrificing and courageous ancestors of the past and selfless soldiers, workers and caregivers of the present.”

Let retired Utah district court Judge Don V. Tibbs, recently profiled in the Deseret News, serve as a proxy for all of those to whom we owe such a debt of deep gratitude, both for his military service in World War II and for his service to the public on the bench. (See David Mackey, (May 25, 2015) “Utah judge, former soldier recalls highlights of 90 years,” The Deseret News, last accessed on line at the following address on May 25, 2015: http://www.deseretnews.com/article/865629020/Soldier-Judge-recalls-highlights-of-90-years.html?pg=all.) Mackey’s profile of Tibbs notes:

The decorated veteran’s thoughts often return to the war front where pain and suffering was evident all around. He witnessed first hand the terrible price paid for freedoms many Americans today seem to take for granted. He recognizes the great sacrifice individuals have made to preserve liberty [and to ensure] the triumph of justice over oppression and tyranny.

Indeed. Along with Burns and Tibbs, may we be mindful of such sacrifices (and may we honor those who made them), not only on Memorial Day and on other patriotic holidays, but throughout the year.

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Thanks to Those Who Serve

Regardless How We Feel About Any Given Conflict, Those Who Have Served in Our Armed Forces Deserve Our Thanks This Memorial Day 

By Ken K. Gourdin

A recent Associated Press story by Rebecca Santana about attitudes of former soldiers toward the Iraq War appeared in the Deseret News (see here, last accessed May 25, 2015):

http://www.deseretnews.com/article/765674437/Veterans-frustrated-by-presidential-debate-on-Iraq-war.html?pg=all.

The story does quote some former military personnel who believe that the military action in Iraq was a mistake, and that point of view, regardless of who agrees with it or not, is not wholly without merit.  Others, however, have a different view.  Many veterans are frustrated by the efforts of Republican presidential contenders to distance themselves from the war by calling the invasion a mistake.  One, for example, notes, essentially, that hindsight always is 20/20:

“Do-overs don’t happen in real life,” said Gregory Diacogiannis, 30, who served as an army sniper in Baghdad trying to spot militants laying roadside bombs and chased high-value targets in the city of Baqouba. “I have trouble with the question itself just because it lends itself to disregarding the sacrifices that have been made.”

The story also quotes another former soldier, who states that the value of what the U.S. did in Iraq should not be measured solely by the fact that no weapons of mass destruction, or WMDs, were found:

. . . [M]any vets, regardless of whether WMD was found or not, found legitimate reasons for being in Iraq. John Kriesel lost both his legs when a 200-pound bomb went off underneath his Humvee outside the western city of Fallujah. He’s written a book called “Still Standing: The Story of SSG John Kriesel” detailing what he went through.

He said he’s proud of what he and his unit did in Iraq to make their area safer. He speaks fondly of Iraqi children he encountered and said he’d do it again in a “heartbeat.” So many questions, he said, like whether to invade Iraq or not, are easier to answer in hindsight.

“I think it’s naive to just assume that we can just wave this magic wand and know what we would do in that situation,” Kriesel said.

Syndicated columnist Charles Krauthammer contends that those calling the initial invasion in 2003 a mistake are answering the wrong question, saying that the relevant decision (and the real mistake) is President Obama’s 2011 decision to begin withdrawing all U.S. troops.  In a recent Washington Post Op-Ed (see here, last accessed May 25, 2015: http://www.washingtonpost.com/opinions/you-want-hypotheticals-heres-one/2015/05/21/909713d6-ffe9-11e4-805c-c3f407e5a9e9_story.html), he writes:

Iraq is now a battlefield between the Sunni jihadists of the Islamic State and the Shiite jihadists of Iran’s Islamic Republic. There is no viable center. We abandoned it. The Obama administration’s unilateral pullout created a vacuum for the entry of the worst of the worst.

And the damage was self-inflicted. The current situation in Iraq, says David Petraeus, “is tragic foremost because it didn’t have to turn out this way. The hard-earned progress of the surge was sustained for over three years.”

Regarding a visit to the Tomb of the Unknowns at Arlington National Cemetery in Virginia, I wrote, in part, that “[T]here [at the Tomb], debates about the rightness or wrongness of any given conflict fade into insignificance.  What matters is that those who sacrificed so much were willing to answer the call of their country.  May we ever remember, and never forget.”  (Ken K. Gourdin (June 4, 2013), “Twenty-one steps: reflections on duty, honor, and privilege,” Tooele Transcript-Bulletin A4).

In a similar vein regarding a story of the vandalism of the home of Cassie McEuen, a former service member (see the story here, last accessed May 25, 2015: http://www.deseretnews.com/article/865628929/Search-continues-for-vandals-of-servicewomans-home.html?pg=all), I wrote:

Thanks to Ms. McEuen for her service as a “soilder.” While authorities doubt the crime was connected to her service, if it were (and while I don’t support the weak defense for committing atrocities that “I was just following orders”), we need to move beyond misplacing blame for political decisions at the feet of those who carry them out. That’s a lesson we should have learned from the Vietnam conflict, but perhaps have not yet. By and large, the role of military rank-and-file personnel is to go where they’re sent and to do the bidding of those who send them. For their willingness to do that, they deserve our respect. Conversely, debates about the rightness or wrongness of any given conflict or action belong in the political arena.

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On Being Led By Living Prophets

Note: I delivered this address in my congregation of the Church of Jesus Christ of latter-day Saints on April 19, 2015.

On Being Led by Living Prophets

By Ken K. Gourdin

My subject today is being led by living prophets.  I testify of the truth as it is recorded in the book of Amos, Chapter 3, Verse 7 that “Surely, the Lord God will do nothing save He revealeth His secret unto His servants, the prophets.”  To those of us who might be tempted to condescend to Him, thinking that surely we would do things differently or better than He does them, God offers the simple assurance contained in Second Nephi, Chapter 27, Verse 20, where He says, “I am able to do mine own work.” Brothers and sisters, while I have absolutely no desire to give offense, please forgive me for being blunt (especially among those who might have tender ears): God doesn’t care whether we think He’s racist, or sexist, or homophobic, or otherwise bigoted, or politically incorrect.  He is able to do his own work without us advising him. We need to decide whether we will be among the humble followers of Christ described in Lehi’s vision in the First book of Nephi, Chapter 8 in the Book of Mormon, who cling to the iron rod and follow the living prophets as they lead us through the mists of darkness to the tree of life, or whether we will be among those–and sadly, there will be those among them who are nominal Latter-day Saints–who are in the great and spacious building and who mock and point their fingers at those who are on the path. What President Ezra Taft Benson said in his masterful discourse on pride more than a quarter-century ago is even more applicable to us today than it was when first he wrote it.  He wrote:

The central feature of pride is enmity—enmity toward God and enmity toward our fellowmen. Enmity means “hatred toward, hostility to, or a state of opposition.” It is the power by which Satan wishes to reign over us. Pride is essentially competitive in nature. We pit our will against God’s. When we direct our pride toward God, it is in the spirit of “my will and not thine be done.” As Paul said, they “seek their own, not the things which are Jesus Christ’s.” The proud cannot accept the authority of God giving direction to their lives.  They pit their perceptions of truth against God’s great knowledge, their abilities versus God’s priesthood power, their accomplishments against His mighty works.

If President Benson’s words describe us in any way, I pray that we might repent and humble ourselves.  If we have not yet gained a testimony that the Church of Jesus Christ of Latter-day Saints is led by living prophets today, we need to do so.  If we do not, we will be as chaff blown about before the whirlwind.  What Christ said of himself in John Chapter 7, Verse 17 is equally true of his living prophets: “If any man will do his will, he shall know of the doctrine: whether it be of God or whether” Joseph Smith, Ezra Taft Benson or Gordon B. Hinckley or Thomas S. Monson speaks of himself. In the book of First Kings, Chapter 18, Verse 27, Elijah mocks the priests of Baal and challenges them to see which god will consume the sacrifice that each prepares.  That verse reads, “And it came to pass at noon, that Elijah mocked them, and said, Cry aloud”–in other words, priests of Baal, maybe he can’t hear you.  Elijah continues, “For he is a god”–the God in whom I believe is all-knowing and all-powerful; what about yours?  and Elijah concludes, “Either he is talking, or he is pursuing, or he is in a journey, or peradventure he sleepeth, and must be awakened.”  The God in whom I believe is never so busy or so distracted or so sleepy that He cannot pay sufficient attention to the needs of His Children, especially to those of His Church and of His Prophets! I like what the gospel reference True To The Faith has to say about prophets and about their role in our lives today:

As members of The Church of Jesus Christ of Latter-day Saints, we are blessed to be led by living prophets—inspired men called to speak for the Lord, just as Moses, Isaiah, Peter, Paul, Nephi, Mormon, and other prophets of the scriptures. We sustain the President of the Church as our prophet, seer, and revelator—the only person on the earth who receives revelation to guide the entire Church. We also sustain the counselors in the First Presidency and the members of the Quorum of the Twelve Apostles as prophets, seers, and revelators. Like the prophets of old, prophets today testify of Jesus Christ and teach His gospel. They make known God’s will and true character. They speak boldly and clearly, denouncing sin and warning of its consequences. At times, they may be inspired to prophesy of future events for our benefit. You can always trust the living prophets. Their teachings reflect the will of the Lord, who declared: “What I the Lord have spoken, I have spoken, and I excuse not myself; and though the heavens and the earth pass away, my word shall not pass away, but shall all be fulfilled, whether by mine own voice or by the voice of my servants, it is the same” (D&C 1:38) Your greatest safety lies in strictly following the word of the Lord given through His prophets, particularly the current President of the Church. The Lord warns that those who ignore the words of the living prophets will fall (see D&C 1:14–16). He promises great blessings to those who follow the President of the Church: “Thou shalt give heed unto all his words and commandments which he shall give unto you as he receiveth them, walking in all holiness before me; For his word ye shall receive, as if from mine own mouth, in all patience and faith. “For by doing these things the gates of hell shall not prevail against you; yea, and the Lord God will disperse the powers of darkness from before you, and cause the heavens to shake for your good, and his name’s glory” (D&C 21:4–6).

As Elder Russell Nelson so eloquently put it in his address wherein he asked us to sustain the prophet last October, “My dear brothers and sisters, if the Restoration did anything, it shattered the age-old myth that God had stopped talking to His children. Nothing could be further from the truth. A prophet has stood at the head of God’s Church in all dispensations, from Adam to the present day.”  We need not worry about being led astray because this is the dispensation of the fullness of times, of the restoration of all things: there will not be another cycle of apostasy and restoration before the Savior’s second coming.  Later in his address, Elder Nelson continues, “Our sustaining is an oath-like indication that we recognize their calling as a prophet to be legitimate and binding upon us.” In the General Conference of April 2006, Elder Jeffrey R. Holland said:

Not often but over the years some sources have suggested that the Brethren are out of touch in their declarations, that they don’t know the issues, that some of their policies and practices are out-of-date, not relevant to our times. As the least of those who have been sustained by you to witness the guidance of this Church firsthand, I say with all the fervor of my soul that never in my personal or professional life have I ever associated with any group who are so in touch, who know so profoundly the issues facing us, who look so deeply into the old, stay so open to the new, and weigh so carefully, thoughtfully, and prayerfully everything in between.

In another General Conference, in April of 2008, Elder Holland quoted Ralph Waldo Emerson’s exhortation to students at Harvard Divinity School more than 170 years ago. Emerson exhorted his students to “teach that God is, not was; that He speaketh, not spake.”  In every General Conference of the Church, prophets, seers, and revelators do exactly that.

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I’m Okay

When Did “I’m Okay” Become Such a Bad Thing? 

By Ken K. Gourdin

A former ecclesiastical leader of mine once delivered this whimsical verse from the pulpit about our tendency to believe that if we’re doing the right things, our lives will be full of nothing but sunshine and rainbows and roses, and that if bad things happen to us (or if our perspective on those bad things doesn’t involve pasting on a perky smile) it must be a sign of God’s disfavor:

If you see the silver lining

In every cloud of gray;

If you’re always smiling

‘Cause your face just froze that way.

If you’re always happy

Amidst the crowds so blue,

Then have your head examined, Bud,

There’s something wrong with you!

Another ecclesiastical leader and philosopher, Elder Neal A. Maxwell of the Church of Jesus Christ of Latter-day Saints, once decried the unrealistic expectations arising from the belief that if God loves us, He will ensure that life will be nothing but a smooth ride, with empty parking spaces just in front of our destinations.  And Jewish philosopher Rabbi Harold Kushner once wrote that expecting to have a trouble-free life because you are a good person is like expecting the bull not to charge you because you’re a vegetarian.

Some of the bad things that happen to us are a result of our own choices. Some of the bad things that happen to us are the results of others’ choices.  And some (indeed, many, I believe) of the bad things that happen to us are a result simply of living in a fallen world.  And the God I believe in, though I do think He is all-powerful, nonetheless chooses to not exercise that power to intervene in many circumstances in which He might protect His children from harm because to do so would short circuit His perhaps-unfathomable larger purposes.  Though I don’t understand the interplay between what God may cause, what He may simply allow, and what He may choose to prevent in order to accomplish His purposes, I simply must have faith in those purposes, even if I do not understand them (See Isaiah 55:8-9 in the Holy Bible).

And I belong to a faith tradition that holds that, while our life here on Earth may begin at conception, such a beginning is simply the construction of our fleshly tabernacle in which our spirit is housed.  With the poet, William Wordsworth, I believe that “Our birth is but a sleep and a forgetting; The Soul that rises with us, our life’s Star, Hath had elsewhere its setting, And cometh from afar; Not in entire forgetfulness, And not in utter nakedness, But trailing clouds of glory do we come From God, who is our home.”  (For the entire poem, see the site from which this excerpt was taken (this and all subsequent links herein last accessed May 23, 2015): http://www.poets.org/poetsorg/poem/ode-intimations-immortality-recollections-early-childhood).

While our memory of that life has been withheld because this life is a test to see if we will be obedient to God (see Abraham 3:22-25 in The Pearl of Great Price of the Church of Jesus Christ of Latter-day Saints here: https://www.lds.org/scriptures/pgp/abr/3.22-25) we lived as spirits before being born into this mortal world.  While, since our memory of the life before this one has been withheld, I am exceedingly reluctant to say that specific individual (perhaps adverse) circumstances in which we find ourselves on Earth are a result of choices we made before our mortal birth (see, e.g., John Chapter 9 in the Holy Bible, which recounts Christ’s conversation with his apostles about whether the man being born blind resulted from choices made by him or by his parents, available here:https://www.lds.org/scriptures/nt/john/9?lang=eng), I do believe that we had free will as spirit beings even before coming to Earth.

And another potential reason why life might be less than ideal (to put it mildly!) is because someone – someone who “seeketh that all men might be miserable, like unto himself,” as 2 Nephi 2:27 in the Book of Mormon put it – wants it that way.  He has many weapons in his arsenal for achieving that objective.  It’s foolish to expect that life always will be easy, or happy, or [insert-positive-adjective-here] when such a being is working so hard to ensure that it won’t be.

And even if our lives are going swimmingly and we have no major problems or issues (how would that be?!) we’re apt to feel a certain amount of discontent even in the best of circumstances because we are out of our element: we are not essentially mortal or physical beings sent here to have occasional spiritual experiences; we are essentially spiritual beings sent here to have a mortal experience.

My discussion of all of these potential reasons why life might be less than ideal is simply a long-winded, perhaps-irrelevant prelude to the question, When did saying we’re doing “Okay” become such a bad thing?  Honestly, it grates on me when well-meaning people, after hearing that response when they ask me how I’m doing, ask, “Just okay?”  But, while “Okay” might seem disappointingly neutral, isn’t it better than many alternatives that are even worse?

And while, again, this could involve much more perception than it does reality, another potential interpretation is, “You know what?  If you’re not doing great, I don’t want to hear it: Don’t rain on my parade!  Despite what you may have thought about our relationship, I’m really not a good enough friend to want to listen to you if you have anything bad to tell me.  Heck, forget ‘bad’ stuff!  I’m not even a good enough friend to want to listen to your ‘neutral’ stuff!”

And, while I know they probably don’t mean to imply this in asking the question, from a certain perspective, “Just OK?” could be interpreted to mean, “What’s the matter with you?   My life – including my marriage, my children, my work and all of its various other aspects – is great!  Isn’t everybody’s?  Shouldn’t it be?”  Well . . . no.  If God means to test us by sending us here, where would the test be in that?

As I’ve written elsewhere on the blog, God isn’t Santa Claus: He doesn’t give us “presents” when we’re “good” and “lumps of coal” when we’re not.  As Sheri L. Dew, a former leader in the general women’s organization of the Church of Jesus Christ of Latter-day Saints put it, “If life were easy, it wouldn’t be hard.”  And as Christ Himself put it, God “maketh his sun to rise on the evil and on the good, and sendeth rain on the just and on the unjust” (Matthew 5:45 in the Holy Bible).

So, yeah: I’m okay.  I’m not “just” okay: I’m okay.

And that’s not a bad thing.

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Youth, Behavioral Issues, and Crime

Lambertus, Vidinhar Cases Pose Difficult Issues

By Ken K. Gourdin

Aza Vidinhar, age 16 at the time of the crimes and age 17 now, recently was sentenced for slaying his two younger brothers, ages 10 and 4. Prosecutors had agreed to leave Vidinhar in the juvenile system until he turned 21, until Vidinhar assaulted a fellow detainee while in juvenile detention. Vidinhar reportedly has shown neither remorse for his crimes nor sympathy for others victimized by them (such as their parents). See the story in the Deseret News here (last accessed May 20, 2015):

http://www.deseretnews.com/article/865628591/Teen-convicted-of-murdering-younger-brothers-sentenced-to-prison.html.

I commented on the difficulties inherent to achieving justice in the case as follows:

There are two types of psychiatric diagnoses: Ones in which a person who does something wrong while under the influence of the illness recognizes that what he’s done is wrong and, with proper treatment, can be given the tools necessary successfully to alter his behavior; and others in which a person who does something wrong recognizes that what he’s done is wrong, but doesn’t care (e.g., psychopathy or sociopathy). As much as I hate essentially writing off anyone who is so young, it does seem as though this young man is in the latter category. If a person (even a relatively young person) is disinclined to feel empathy or to alter his behavior accordingly, unfortunately, the best that can be done is to put him where he will not hurt anyone else.

In a related vein, following a disagreement with his mother, Apollonia Lambertus’s son (who has not been named in media coverage because of his age) hit her with her vehicle as the son, who has no driver’s license, attempted to leave in the vehicle following a disagreement between the two. Lambertus’s son has behavioral health, substance abuse, and cognitive issues. See Deseret News coverage here, last accessed May 20, 2015:

http://www.deseretnews.com/article/865628594/Midvale-mother-run-over-by-son-says-he-needs-treatment-jail-time.html.

I commented as follows:

This young man has a complicated constellation of problems that will be difficult to address. In order adequately to address the problems of someone with a behavioral health issue, that person must: (1) know he has a problem; (2) want help for it; and (3) believe he can be helped. Unless all three of those conditions are met, treatment is unlikely to be successful. In that case, as unfair as it might seem to the person with the issue [especially a young person], the best thing society can do is put him in an environment where he is least likely to harm anyone else, and the young man’s right to treatment needs to be balanced against society’s need for safety.

I don’t envy anyone who will have a role in passing sentence on this young man. Solomonic wisdom will be required, which is a capacity few, if any, humans possess.

I have commented on the line between illness and willfulness elsewhere on the blog (see the following address, which was last accessed May 22, 2015: https://greatgourdini.wordpress.com/2012/12/20/on-illness-willfulness-and-alienation/). In part, I said:

It seems to me that there’s a big, big difference between being “a few fries short of a happy meal,” which seems to imply that some condition (mental, psychological, what have you) prevents someone from relating relatively normally to other folks on the one hand, and simply being a narcissistic, manipulative, perhaps sociopathic user who values other people only for what one can get out of them on the other hand. (While my indictment of the latter group might seem extreme, far too many people in this world value things and use people, rather than using things and valuing people.) . . .

Calling someone “a few fries short of a happy meal” when there might well be much, much more to it than that seems like an attempt (wittingly or not) to justify bad behavior by attributing it, essentially, to illness rather than to willfulness. It does a disservice to those whose dysfunction in relating to others is attributable to the former rather than to the latter. (To be fair, the line between illness and willfulness often is very, very indistinct, and it makes for special problems: you want to help the person on the one hand because s/he is ill, but you don’t want to risk being manipulated on the other).

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Police Prevent Homeowner’s Reentry

Police Prevent Homeowner from Reentering Home While They Wait for Warrant

By Ken K. Gourdin

After cannabis activist Shona Banda’s young child spoke in favor of marijuana legalization at his school, child welfare authorities and police teamed up to search Banda’s home. Apparently, police lured Banda far enough from her home that they felt justified in preventing her reentry before they were able to secure a warrant to search it. See the following link, last accessed May 19, 2015: http://benswann.com/video-without-warrant-cops-block-cannabis-oil-activist-shona-banda-from-entering-her-own-home/.

As I have written before1, if components of marijuana are useful medicinally, let’s structure some methodologically-rigorous studies to isolate those components, test them under controlled conditions, and develop a body of evidence tending to show such usefulness. Let’s do that with respect to each of marijuana’s purportedly-beneficial ingredients and each of the maladies for which a high number of anecdotal reports exist regarding marijuana’s purported usefulness medically. (Yes, that’ll be expensive, but let legalization proponents put their money where their mouths are.)

Conversely, the current climate surrounding legalization of marijuana for medicinal purposes is not conducive to demonstrating its purported medical uses: one methodologically-rigorous study is worth a million anecdotal reports, and the the not-inconsiderable number of reports of “patients” sitting in “pot shop” waiting rooms in jurisdictions where medicinal marijuana is legal discussing the excuses they use to have allegedly-legitimate prescriptions filled (“I have, uhhh, anxiety issues. Heh-heh!”) don’t do legalization proponents any favors. And while recreational marijuana legalization is a separate discussion for another day, even those jurisdictions place a very low-level cap on how much a user may possess.

Still, while I don’t favor legalization, I do have concerns with how drug crime is investigated and prosecuted in individual cases. As pro-police and as pro-prosecution as I am, the United States Constitution deserves more than “a wink and a nod” from police, prosecutors, and judges, even when responding to such serious issues as drug crime. One such individual case about which I am concerned (and in which police apparently “winked and nodded” at the Constitution) is that of marijuana legalization activist, medicinal marijuana user, and Crohn’s Disease sufferer

To fully understand the case and my concerns regarding it, some background is in order. The U.S. Constitution’s Fourth Amendment protects “persons, houses, papers, and effects” against unreasonable searches and seizures, and it requires the police either to: (a) obtain a warrant signed by a judge before conducting a search; or (b) possess probable cause to conduct such a search, absent a warrant. The Fourt Amendment protects the interior of the home, the “curtilage” (or the area immediately surrounding the home, and any areas that are not visible from an adjoining area and which one would have to commit an act of trespassing to see. There are exceptions to the Fourth Amendment warrant requirement, one of which is exigent circumstances. An exigent circumstance is one which requires immediate action and under which it is not practical for law enforcement to take the time necessary to secure a warrant. For example, one exigent circumstance occurs when police reasonably believe the destruction of evidence is imminent.

Suppose something akin to the following scenario takes place. Two cops, suspecting drug activity is taking place in a certain house but lacking probable cause to enter the house and/or to secure a warrant, approach said house. One of them knocks on the door. The homeowner answers. Cop 1 then says:

Cop #1: “We need you to come with us.”

Homeowner: “What’s the problem?”

Cop #2: “Never mind that, we just need you to come with us.”

Homeowner: [Baffled, perhaps ignorant of his Fourth Amendment rights, and not

wishing to antagonize two guys with badges and guns, homeowner

begins to exit his home and follow the cops as he says, uncertainly] “Uhhh, Okay.”

Cop #1: [After the trio has proceeded some distance from the house] “Do you think that’s far enough, Hank?”

Cop #2: “Nah! He’s still in the curtilage.” [The trio then proceeds farther from the house]

Homeowner: “Look, I’m trying to cooperate. Will someone please tell me what’s going on?”

Cop #1 : “We think there are drugs in your house.”

Homeowner: [Though the stress of the moment has affected his powers of reason,

and even though he has nothing to hide, the homeowner vaguely remembers something from his eighth grade civics class about police needing a warrant to search someone’s home. Mustering his last ounce of courage, he asks] “Do you have a warrant?”

Cop #2: “It’s on its way.”

Homeowner: “Well, can I go back inside until it gets here?”

Cop #1 : “No.”

Homeowner: “Why not?”

Cop #2: “You might try to destroy evidence.”

Whereupon Cop #1 breaks out his smartphone and begins playing solitaire. Cop #2, who’s not as techno-savvy as his partner, breaks out a book of crossword puzzles and a pencil in order to pass the time until the prosecutor finally obtains the neceessary warrant.

It would seem that this scenario violates the Fourth Amendment in at least two ways: Number one, by restricting the homeowner’s freedom of movement for the lengthy period necessary to obtain the warrant, they have, in effect, “seized” him, and any U.S. court worth its salt should find that a protracted seizure merely for purposes of obtaining a warrant is not “reasonable.”

And number two, while police may, under the doctrine of exigent circumstances, make a warrantless entry to prevent the imminent destruction of evidence, to the best of my knowledge, there’s no case law allowing them, without a warrant, to lure a homeowner away from the curtilage of her home, then for them (without a warrant) to prevent her from reentering her home for fear that she might destroy evidence.

Although police can restrain a homeowner’s movement while executing a warrant (or while conducting a probable cause search), they cannot restrain a homeowner while merely waiting for a warrant. I would be surprised if a court did not exclude the fruits of this search, either at trial or on appeal.

END NOTES
1. Ken K. Gourdin (January 18, 2014) “Thoughts on Medicinal Marijuana” (Blog Post), last accessed May 19, 2015 at the following address: https://greatgourdini.wordpress.com/2014/01/18/on-medicinal-marijuana/.

See also Ken K. Gourdin (January 13, 2015), “Oppose Marijuana Legalization? Prefer to Not Do Business With Those Who Favor It? You’re a Bigot” (Blog post) last accessed May 19, 2015 at the following address: https://www.greatgourdini.wordpress.com/2015/01/13/bigots-against-marijuana-legalization/.

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