Dan Crenshaw Declares That Fourth Amendment Protects Thanksgiving (Psst It Doesnt) – Above the Law

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Huzzah!

Thanksgiving is saved everyone. And you can go ahead and thank Representative Dan Crenshaw who scoured the Constitution and found a provision that makes it ILLEGAL for law enforcement to go after peoples Turkey & Superspreader Day! And its right there in the Fourth Amendment.

This is not accurate. That said, lets see if we can pinpoint where Dan jumps off the rails. Unsurprisingly, it seems to stem from the standard conservative fetishization of private property. As Chief Wiggum says:

Obviously, the Fourth Amendment does not prohibit prosecutions just because an infraction happens inside a home. Crimes happen inside houses all the time, and if the Fourth Amendment extended that far, then people would all be legally growing marijuana in their homes something Dan Crenshaw has affirmatively voted against.

The most charitable read of Crenshaws nonsense is that law enforcement should not be able to knock on your door and bust up your attempt to kill grandma with germs unless the cops have a warrant. Thats the Schoolhouse Rock version of the Fourth Amendment, anyway.

But thats not how it works in reality. Warrantless searches are blessed all the time and while one can quibble that this happens too often and the expansion of police power in this area is absolutely troubling its bonkers to pretend the Fourth Amendment is an ironclad fence. Exceptions to the Fourth Amendment are fact-specific inquiries, but generally turn on the reasonableness of the search and the strength of the government interest. They often lean far too heavily on the latter, but it is what it is.

Considering the world today, there is ample support for the proposition that a pandemic specifically would authorize state actors to intervene and approach someones home to protect the public. For instance, the Third Circuit in U.S. v. Ward a case Alito ruled on determined that stopping the spread of a communicable disease justified a blood test that would have otherwise violated the Fourth Amendment. Once public health is established as a justified interest, busting up a party when there are five cars parked on the lawn presents a decent case for exigent circumstances justifying swift action before Aunt Karen absorbs a full viral load.

Given the risks of abuse in handing over blank checks to law enforcement, one would hope that prosecutors use their discretion and not charge people here. Having the cops treat it like a noise complaint and just sending everyone home should be more than sufficient. If some prosecutor did pursue actual charges, a family may have defenses of varying quality available ranging from religious freedom to a generalizable right to privacy to discrimination claims (since its unfortunately safe to worry that the impact of unfettered police power will fall upon minority communities).

But they arent going to have a Fourth Amendment claim.

Joe Patriceis a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free toemail any tips, questions, or comments. Follow him onTwitterif youre interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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Dan Crenshaw Declares That Fourth Amendment Protects Thanksgiving (Psst It Doesnt) - Above the Law