Date: Sat, 29 Apr 2000
Custody of Elian was not Necessary
Thomas M. Miovas, Jr.
One of the remarks we hear the most from those who want to try
to validate the raid on Lazaro and Marisleysis' home is that
they no longer had custody of Elian, so it was Ok for Federal
Marshals to move in with force; also, the INS claims Elian's
status had changed, making him an illegal alien thereby further
validating their actions. Do you realize that under the Fourth
Amendment, neither argument is valid? I'm not merely referring
to the illegal search and seizure, which did occur, but rather a
further original intent of the Fourth Amendment.
The Founding Fathers were well aware of the fact that during
Colonial times people were routinely removed from private homes
by the authorities without having to give any justification.
This procedure was especially used against those the authorities
believed were acting or speaking out against them. Knowing this
was a violation of personal liberties, the Founding Fathers
wanted to institute a mechanism by which *any* private citizen
of the United States could house a person wanted by the
authorities as a means of forcing the issue into a court of law
(as a part of the checks and balances on the government). It was
especially intended as a means of safeguarding those who were
being unduly persecuted by local, state, domestic, or foreign
authorities.
In other words, *any* private citizen can use his private home
as a legal safe house, until a judge or a magistrate issues an
order for arrest (or a similar document) to remove the wanted
person from that home (there are exceptions, such as if the
authorities see a suspect enter a home after witnessing him
committing a crime). Since it was clearly the intent of Elian's
Miami relatives to protect Elian from undue persecution by Cuban
authorities (and as it turns out, Washington authorities), they
**did not need custody of Elian** to put this tactic into
operation and **his legal status as a non-citizen is completely
irrelevant**.
For clarification on this, I called the Dean of a local
Political Science Department of a major university, who is an
expert on Constitutional Law, and he agreed with the above
argument; saying there are many precedents for this, including
those dealing with runaway slaves prior to the Civil War and
those dealing with refugees from the Cold War.
So, not only did the agents who seized Elian violate the illegal
search and seizure aspect of the Forth Amendment, they also
violated the Miami relative's right to act as a legal protector
for someone who was wanted by the authorities (in this case,
both foreign and domestic).
