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Two privacy rulings hit us right where we live
desertdispatch.com ^ | 30 May, 2011 | JACOB SULLUM

Posted on 05/31/2011 6:53:40 AM PDT by marktwain

A few years ago, two police officers were chasing a crack dealer at a Lexington, Ky., apartment complex when they lost sight of him as he ducked into one of two units at the end of a breezeway. Detecting “a very strong odor of burnt marijuana” coming from the apartment on the left, they figured that must be the one, so they banged on the door and shouted, “Police!” Hearing “the sound of persons moving,” the officers later reported, they feared evidence was being destroyed, so they kicked in the door.

It turned out to be the wrong apartment, but inside the cops discovered a guest smoking pot and, during a “protective sweep” of the apartment, saw marijuana and cocaine powder “in plain view.” A more thorough search turned up crack, cash and drug paraphernalia.

So much for the alleged destruction of evidence. So much, too, for the doctrine that a man’s home is his castle, not to be forcibly entered by government agents on a whim or a hunch. Last week, the U.S. Supreme Court said the “exigent circumstances” that exist when someone might be flushing drugs down a toilet allow police to enter a home without a warrant, even if their own actions create those circumstances.

As the lone dissenting justice, Ruth Bader Ginsburg, noted, this decision “arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.” Instead of “presenting their evidence to a neutral magistrate,” they can retroactively validate their decision to break into someone’s home by claiming they smelled something funny and heard something suspicious.

While the U.S. Supreme Court said police may force their way into a home to prevent the destruction of evidence, the Indiana Supreme Court, in a less-noticed decision issued the week before, said police may force their way into a home for any reason or no reason at all. Although the victim of an illegal search can challenge it in court after the fact, three of the five justices agreed that “there is no right to reasonably resist unlawful entry by police officers.” They thereby nullified a principle of common law that is centuries old, arguably dating back to the Magna Carta.

The case involved Richard Barnes, whose wife called 911 in November 2007 to report that he was throwing things around their apartment. When police encountered Barnes outside, he shouted that they were not needed because he was in the process of moving out. His wife emerged, threw a duffle bag in his direction and told him to collect the rest of his belongings. When two officers tried to follow the couple back into the apartment, Barnes blocked the way, while his wife said “don’t do this” and “just let them in.” Barnes shoved one officer against a wall, and a scuffle ensued.

After he was convicted of battery on a police officer, resisting law enforcement, and disorderly conduct, Barnes appealed, arguing that the jury should have been instructed about “the right of a citizen to reasonably resist unlawful entry into the citizen’s home.” The Indiana Supreme Court could have ruled that the officers’ entry into the apartment was lawful given the possibility of violence, especially since Barnes’ wife had called 911 and arguably invited them in. The majority suggested as much but inexplicably decided a far broader question. “Because we decline to recognize the right to reasonably resist an unlawful police entry,” the court said, “we need not decide the legality of the officers’ entry into Barnes’s apartment.”

This backward approach suggests the justices were eager to repudiate a straightforward extension of self-defense that struck them as an outmoded impediment to law enforcement. Like the “sniff, knock, listen and kick” rule endorsed by the U.S. Supreme Court, the decision illustrates the steady erosion of security in the name of security, even in the setting where our right to be left alone is supposed to be strongest.


TOPICS: Constitution/Conservatism; Government; News/Current Events; Philosophy
KEYWORDS: constitution; police; search; warrant
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It appears that they final nails are being driven into the coffin of the 4th amendment.
1 posted on 05/31/2011 6:53:42 AM PDT by marktwain
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To: marktwain
Are the courts trying to get LEO’s killed???
2 posted on 05/31/2011 6:57:37 AM PDT by Niteranger68 (Jared Lee Loughner - Disciple of Michael Moore)
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To: marktwain

Yep, and the rest of the Bill of Rights are on life support.


3 posted on 05/31/2011 6:59:26 AM PDT by SUSSA
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To: marktwain

Welcome to the USSA, comrade. Keep your eyes down and shuffle along.


4 posted on 05/31/2011 7:00:31 AM PDT by Travis McGee (Castigo Cay is in print and on Kindle.)
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To: marktwain
“there is no right to reasonably resist unlawful entry by police officers.”

Your home, your car, your person -- the police have full access 24/7 for any reason at all. You cannot stop them.

Unless, of course, you decide to stop them.

I think the police may come to regret making it open season on citizens. Nobody likes jack-booted thugs.

5 posted on 05/31/2011 7:00:36 AM PDT by ClearCase_guy (The USSR spent itself into bankruptcy and collapsed -- and aren't we on the same path now?)
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To: Niteranger68
Are the courts trying to get LEO’s killed???

How many home owners will be charged with murder for defending their homes?

How long before such events are used to justify confiscation of privately-held firearms?

'Cause you can't have upity citizens shooting at cops who bust down doors for no reason, ya know.
6 posted on 05/31/2011 7:02:40 AM PDT by ConservativeWarrior (In last year's nests, there are no birds this year.)
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To: marktwain

Educate yourself. Even the lawyer who worked with Mr. King on the Kentucky case thought that Justice Alito's opinion was perfectly sound. I guess facts don't matter to liberaltarians.

http://volokh.com/2011/05/19/common-misreadings-of-kentucky-v-king-and-the-difference-between-exigent-circumstances-and-police-created-exigencies/

7 posted on 05/31/2011 7:05:38 AM PDT by freedomwarrior998
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To: Niteranger68

Yes.

Then on to step 2:

Taking the guns away from you because its too dangerous for LEO’s.

Part of the plan, my man...part of the plan...


8 posted on 05/31/2011 7:14:37 AM PDT by Adder (Say NO to the O in 2 oh 12)
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To: marktwain

I commit no crime in person or at home. Therefore, it is my policy that I will defend myself against illegal police action including warrentless search.... Years ago I swore to uphold the US Constitution against all enemies foreign and DOMESTIC. I hope that day never comes in the US....but I will honor my pledge.


9 posted on 05/31/2011 7:16:55 AM PDT by Rapscallion (Obama is a foreigner. He has no right to the office. He must be impeached. It's not personal.)
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To: marktwain
The Indiana court has no jurisdiction over the 4th amendment.

BTW, one more time, the Indiana case has been misrepreented.

Barnes was OUTTA THERE. Other USSC cases of recent vintage say that she could have barred the cops, as a resident of the apartment, but she not only didn't bar them, she called them to help her!

The case would have been easily decided against Barnes ~ the man ~ simply by noting he was NO LONGER A RESIDENT.

The major mistake the court in Indiana made was using Islamic exegesis to examine the facts ~ then writing the woman out of the case and ruling on the basis no longer recognized in English or American common law ~ to wit, that the man is the head of the household and even if he doesn't live there the womenfolk gots ta' do what he says!

I've noticed a decided disinterest on the part of the "home is a castle" people who've commented to deal with the woman's rights to be in command of her own castle.

In fact, a clear reading of Indiana's Castle Doctrine law makes it understood that SHE could have called in the cops, or just picked up a shotgun and turned Barnes into a spray of pink mist.

I suspect a number of them to be Moslems who've infiltrated FR in the last couple of years.

10 posted on 05/31/2011 7:17:23 AM PDT by muawiyah
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To: marktwain

Sends chills through my body - literally. What happened to “the land of the free”?


11 posted on 05/31/2011 7:18:21 AM PDT by ilovesarah2012
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To: Rapscallion

Warrantless search is not always unlawful.


12 posted on 05/31/2011 7:18:56 AM PDT by muawiyah
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To: freedomwarrior998

Did the cops bust down the door and enter an apartment without a warrant or not?


13 posted on 05/31/2011 7:20:06 AM PDT by ilovesarah2012
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To: freedomwarrior998
I guess facts don't matter to liberaltarians.

Liberaltarians arguments always boil down to "I want to smoke pot"

14 posted on 05/31/2011 7:20:17 AM PDT by Dan(9698)
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To: marktwain

Why would we be surprised at the deterioration of liberty in a time when even the equal protection of right to life of all persons is disregarded?

Remember, they’re butchering thousands again today in the abortuaries, or via chemical poisons.


15 posted on 05/31/2011 7:23:15 AM PDT by EternalVigilance ('To you from failing hands we throw the torch; be yours to hold it high.')
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To: marktwain
As the lone dissenting justice, Ruth Bader Ginsburg, noted, this decision “arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.” Instead of “presenting their evidence to a neutral magistrate,” they can retroactively validate their decision to break into someone’s home by claiming they smelled something funny and heard something suspicious.

If Ruth Bader Ginsburg is the voice of reason, America is in deeper trouble than anyone thought.

16 posted on 05/31/2011 7:23:52 AM PDT by Mr. Jeeves ( "The right to offend is far more important than any right not to be offended." - Rowan Atkinson)
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To: Dan(9698)

Really? I have often thought of myself as much like a Libertarian. And I have NEVER smoked pot. AND I don’t want to.

What most Libertarians want is Freedom from Socialists, Authoritarians, Communists, and overbearing Government in all forms.

Is that bad?


17 posted on 05/31/2011 7:25:37 AM PDT by King_Corey (www.kingcorey.com)
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To: Adder

http://www.freerepublic.com/focus/f-news/2727531/posts

Uh Huh....

beginnings of step 2


18 posted on 05/31/2011 7:26:55 AM PDT by Adder (Say NO to the O in 2 oh 12)
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To: Adder
Their plan will run them out of LEO’s before we run out of guns.
19 posted on 05/31/2011 7:28:41 AM PDT by Niteranger68 (Jared Lee Loughner - Disciple of Michael Moore)
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To: Dan(9698)

i am a libertarian. i do not smoke pot. i do support a person’s choice to do so at home at their own risk. stepping out of that circle, endangers the lives of others and opens them to the consequences of that action.

the destruction of being secure in one’s home is an end to western civilization and a free society. it is.

tell me how your prohibition is saving lives and money.

it is not.

teeman


20 posted on 05/31/2011 7:31:14 AM PDT by teeman8r (armageddon won't be pretty, but it's not like it's the end of the world.)
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To: Niteranger68

I wish I shared your optimism.

Too many will simply comply, I think.


21 posted on 05/31/2011 7:32:34 AM PDT by Adder (Say NO to the O in 2 oh 12)
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To: ilovesarah2012

A warrant has NEVER (in the history of Western law) been required for exigent circumstances. Even at the time of the Founders, if you were in the process of destroying evidence, it could be seized without a warrant.

Liberaltarians want the Fourth Amendment to read in a way that it does not.

The Fourth Amendment only protects against UNREASONABLE searches and seizures. It DOES NOT and NEVER HAS required a warrant for EVERY search or seizure.

“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.”

Perhaps you can explain why you are more qualified than Justice Alito to expound upon this area of the law? Can you start with where you went to Law School and in what State you are licensed to practice law?


22 posted on 05/31/2011 7:39:04 AM PDT by freedomwarrior998
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To: muawiyah
I suspect a number of them to be Moslems who've infiltrated FR in the last couple of years.

The Moslems Are Due On Maple Street.

23 posted on 05/31/2011 7:40:38 AM PDT by 57 Red States
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To: King_Corey
Some people who hate our freedoms are foreign jihadists.

Some people who hate our freedoms are FINO "FReepers".

24 posted on 05/31/2011 7:41:58 AM PDT by 57 Red States
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To: freedomwarrior998

I worked for lawyers for 27 years. I like to think I learned a little. And if you think it’s okay for cops to bust down a door because they feel like it, maybe you don’t belong in America.

Are you okay with cops randomly listening at doors to see if they hear a toilet flush? People like you scare me. It’s all fine until it happens to you, then you’ll change your tune.


25 posted on 05/31/2011 7:43:14 AM PDT by ilovesarah2012
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To: freedomwarrior998
Perhaps you can explain why you are more qualified than Justice Alito to expound upon this area of the law? Can you start with where you went to Law School and in what State you are licensed to practice law?

You first. Do you:

1. Have credentials that the majority justices in Roe v. Wade lack, or

2. Agree that Roe v. Wade was correctly decided?

26 posted on 05/31/2011 7:43:33 AM PDT by 57 Red States
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To: ilovesarah2012

Hey, give him a break. He serves an essential purpose. After all, jackboots can’t stay shiny if nobody is willing to lick them.


27 posted on 05/31/2011 7:45:08 AM PDT by 57 Red States
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To: freedomwarrior998
I agree.

As an aside, there is a scene in "The Maltese Falcon" in which the police show up at Sam Spade (Humphrey Bogart's) door at about 3 AM. They want to talk. They want to come in and talk. Bogart shakes his head "Not without a warrant." The police stand in the hallway and they talk for a little bit and then, from the inside of Spade's apartment, we hear Petter Lorre shout "Help!"

The police look at Bogart and smile. "I guess we're coming in."
Bogart looks at the police and shrugs. "I guess you are."

28 posted on 05/31/2011 7:45:11 AM PDT by ClearCase_guy (The USSR spent itself into bankruptcy and collapsed -- and aren't we on the same path now?)
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To: King_Corey
At the same time Libertarians don't want OTHERS to be able to work to prepare for their own self protection in a lawless society.

Remember, just as soon as you guys get cocaine and heroine legalized you are going to want police protection to keep your mothers from tossing out your stash from its basement hideaway.

29 posted on 05/31/2011 7:54:08 AM PDT by muawiyah
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To: marktwain

More people should do what I did. When I was building my house, I salvaged a solid steel security door from a office building that was being renovated. I planted steel supports in three feet of concrete for the door frame which I then attached the door to. For extra protection, once the door is shut, I have a steel slide bar at the the top and bottom that I can place into brackets welded directly to the steel supports. The end result being, a cop can kick the door all day long and all he’ll get is a broken toe, ditto with the hand held rams. In fact I’m guessing nothing short of ram attached to a bulldozer is going to budge it and I’m imagine in the time it takes to find one of those. I can contact my lawyer, the press etc. and rectify any “misunderstandings” such as attempts to serve a search warrant at the wrong address.


30 posted on 05/31/2011 8:00:56 AM PDT by apillar
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To: ilovesarah2012
You're walking down the hallway in the apartment building where you live and you smell smoke. In fact, you stop and check and there it is coming out from underneath that door to your right.

So, you call the cops ~ they come after 1 hour ~ bust in ~ find guys who had been huffing paint. They died when one of them stopped to light up a doubie.

If you'd instead called the fire department they'd gotten there in time to save them.

Now let's say both the cops and the firefighters had to wait for a warrant since, as we all know (from libertarians) that those guys might be smoking the sacred herb, the natural plant called MJ, and you can't just bust in and find that.

What is the Libertarian solution to this problem of young people dying needlessly ~ cops that knock down doors without warrants ~ send nosey neighbors packing ~ education about risk taken when huffing and blowing simultaneously ~ with voluntary rehab available on every block ~

31 posted on 05/31/2011 8:02:03 AM PDT by muawiyah
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To: freedomwarrior998; All

Here is a much better analysis of the U.S. Supreme Court case, pointed out to me by freedomwarrior998. I posted it on freerepublic:

http://www.freerepublic.com/focus/f-news/2727599/posts


32 posted on 05/31/2011 8:12:54 AM PDT by marktwain
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To: ilovesarah2012
When we were discussing the Arizona incident (Pima County - Marine Jose Guerena) on another fourm, the question came up about WHY the police "needed" to kick in Guerena's door, when they could have utilized the lessons of Waco and Ruby Ridge, and picked up Guerena on his way to or from his 12-hour work shifts at the local copper mine.

Someone explained that the police/revenuers would only get what was physically on the arrested suspect if he was grabbed outside his "castle".

However, if the revenuers get inside the "castle", they get ANYTHING they want.

It's about stealing as much of the property of the peasants as possible, not about "law enforcement".

Gotta fund the Machine.

33 posted on 05/31/2011 8:13:33 AM PDT by kiryandil
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To: apillar
That's a felony in Oklahoma.
34 posted on 05/31/2011 8:17:05 AM PDT by kiryandil
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To: Adder
Too many will simply comply, I think.

Some will...and some already have with regards to other rights. But I still think "we" have "them" outnumbered.

35 posted on 05/31/2011 8:32:09 AM PDT by Niteranger68 (Jared Lee Loughner - Disciple of Michael Moore)
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To: kiryandil
That's a felony in Oklahoma.

I went to that link you provided and read the law. Talk about vague, it sounds like the intent was more to go after people that would booby-trap a door, but the way it's worded, "obstruct any door", you could be in violation if you happen to have left a heavy box sitting where it would keep the door from freely opening. But strangely enough it sounds like it only retroactively applies if you are charged with a drug offense...

any person to willfully fortify an access point into any dwelling, structure, building or other place where a felony offense prohibited by the Uniform Controlled Dangerous Substances Act is being committed, or attempted, and the fortification is for the purpose of preventing or delaying entry or access by a law enforcement officer, or to harm or injure a law enforcement officer in the performance of official duties.”

By the sound of it, it appears it is very narrowly targeted to go after drug dens and as long as you aren't involved in drugs you can still fortify you doors and windows all you want. For that matter, if you are manufacturing or selling drugs, odds are you won't care about violating this law anyway.

36 posted on 05/31/2011 8:41:40 AM PDT by apillar
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To: marktwain

I predict that as a result of this ruling, in the future drug dealers will remove the toilets from their drug pads so the cops won’t have this excuse. The first case will likely tie up our Federal Court system for 13 years.


37 posted on 05/31/2011 9:14:11 AM PDT by Buckeye McFrog
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To: ilovesarah2012
Again, where did you go to law school and where were you first licensed to practice law?

Given your apparent inability to read, I wonder in what capacity did you "work for lawyers for 27 years"? Janitor maybe?

38 posted on 05/31/2011 9:15:39 AM PDT by freedomwarrior998
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To: apillar; All
More people should do what I did. When I was building my house, I salvaged a solid steel security door from a office building that was being renovated. I planted steel supports in three feet of concrete for the door frame which I then attached the door to. For extra protection, once the door is shut, I have a steel slide bar at the the top and bottom that I can place into brackets welded directly to the steel supports. The end result being, a cop can kick the door all day long and all he’ll get is a broken toe, ditto with the hand held rams. In fact I’m guessing nothing short of ram attached to a bulldozer is going to budge it and I’m imagine in the time it takes to find one of those. I can contact my lawyer, the press etc. and rectify any “misunderstandings” such as attempts to serve a search warrant at the wrong address.

It sounds like a good installation. It makes sense to make your residence more physically secure.

I like the idea of a second barrier some feet away from the door. The door bell should be at this barrier, so that you can look from the doorway and see who wants to enter your domicile. I saw this in use by a good friend of mine, George "Tex" Ferguson, the highly decorated WWII veteran and intelligence operative. His was installed on the porch of his house. A wall around the rest of the property discouraged entry by other means than the front of the house. The porch extended across the whole front of the house, and was enclosed with a fairly strong welded wire or hardware cloth. A security door and a doorbell completed the installation. You could look through the security door and the hardware cloth to see who and how many people where there.

Tex had made a lot of enemies over the years, I am sure. The "stand off" distance that the second barrier gives you makes quite a difference in your ability to respond to a threat.

A modern version would have an intercom and a security camera to watch the doorbell position. They are cheap enough that we should all install them. Video recordings are doing more to restore our rights than quite a number of lawsuits.

39 posted on 05/31/2011 9:18:23 AM PDT by marktwain
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To: ilovesarah2012
freedumbwarrior998 is a known Jack Boot leather fetishist on Free Republic.

ANYTHING the cops do is A-OK with it...

40 posted on 05/31/2011 9:32:30 AM PDT by kiryandil
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To: kiryandil

Uh huh, act like a petulant child. It only shows your intelligence (or more precisely a lack thereof.)


41 posted on 05/31/2011 10:58:39 AM PDT by freedomwarrior998
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To: freedomwarrior998

Are you better than janitors? At least they make an honest living and probably don’t think they are better than others.


42 posted on 05/31/2011 11:14:19 AM PDT by ilovesarah2012
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To: ilovesarah2012

LOL! What you are doing is called “projection.”


43 posted on 05/31/2011 11:57:26 AM PDT by freedomwarrior998
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To: freedomwarrior998

Thank you, doctor. Send me your bill.


44 posted on 05/31/2011 11:58:55 AM PDT by ilovesarah2012
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To: freedomwarrior998

Anything you say, leatherboy....


45 posted on 05/31/2011 8:56:52 PM PDT by kiryandil
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To: ilovesarah2012
Isn't he just an insufferable twit?

Wouldn't mind it so much, but coupled with the sound of incessant jackboot-leather-licking, freedumb becomes truly annoying.

Reminds me of my cat trying to fish something out of his posterior for a half-an-hour....

46 posted on 05/31/2011 9:01:25 PM PDT by kiryandil
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To: kiryandil

Waaaaaaaaaaaaaahhhhhhhhhhhhhhhhhhhhhh, the petulant child speaks. How quaint. With an IQ to match.


47 posted on 05/31/2011 9:19:17 PM PDT by freedomwarrior998
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LOL! Listen to the bootlicker slurp those jackboots!


48 posted on 06/01/2011 4:47:13 AM PDT by kiryandil
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To: kiryandil

LOL - everyone is entitled to their opinion - even if it is wrong!


49 posted on 06/01/2011 5:09:32 AM PDT by ilovesarah2012
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To: muawiyah
Warrantless search is not always unlawful.

But it is always resented most especially by the innocent. Get it?

50 posted on 06/01/2011 1:54:35 PM PDT by Rapscallion (Obama is a foreigner. He has no right to the office. He must be impeached. It's not personal.)
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