One of the problems with our incredibly complex and increasingly capricious legal system is that those who deal with it can end up treating it as a game. After Jonathan Adler on the Volokh Conspiracy quoted Radley Balko about Kathryn Johnston’s killing, Orin Kerr took offense:

Radley’s “pretty simple” solution seems quite troubling to me. Under his proposed solution—“stop invading people’s homes for nonviolent offenses”—a person could commit any white collar fraud, embezzle money from the elderly, bribe Congressmen, or engage in a global child pornography trading ring knowng that the police won’t invade their home to collect evidence against them.

Orin Kerr is using “invasion” to mean any kind of police search and arguing against the notion that we should forbid any home searches for any non-violent crime. But is that what Balko meant? Here’s part of what Adler quoted:

On the other hand, if the police break into your home and they mistake the blue cup, TV remote, the t-shirt you’re holding to cover your genitals because they broke in while you were sleeping naked, or the glint off your wristwatch for a gun—and subsequently shoot you (all of these scenarios have actually happened), well, then no one is to blame. Because, you see, SWAT raids are inherently dangerous and volatile, and it’s perfectly understandable how police might mistake an innocent person holding a t-shirt for a violent drug dealer with gun.

This discrepancy grows all the more absurd when you consider that they have extensive training, you don’t. They have also spent hours preparing for the raid. You were startled from your sleep, and have just seconds to make a life-or-death decision. To top it all off, many times they’ve just deployed a flashbang grenade that is designed to confuse and disorient you.

The solution is actually pretty simple: Stop invading people’s homes for nonviolent offenses.

I’ve highlighted the parts that Kerr appears to have missed. Balko is clearly not talking about all searches. He’s talking about SWAT-style break-ins performed at night when the victim is most likely to think that a home invasion is in progress, and performed in a manner to create just that confusion. This is not the kind of search that police normally use for white collar fraud. Although its use is growing, the police are rarely worried that some accountant is going to flush twenty million dollars down the toilet.

Kerr knows this. He’s playing word games. Even having the obvious meaning pointed out to him, he updates his post with “I’m not sure I see this in Radley’s post, but I thought I should at least flag the uncertainty.”

Others on that blog are being polite and suggesting a mistaken interpretation, but Kerr is not that stupid. He’s not confusing grenade-accompanied home invasions by SWAT teams with normal searches. He’s deliberately playing word games with one sentence in Balko’s statement, ignoring the phrases “SWAT”, “grenade”, and “break in”, and the normal definition of home invasion.

Kerr scores double points for invoking “global child pornography”. Suggesting a connection between child porn and opposition to violent home break-ins in the middle of the night is just another part of the game.

Meanwhile, in the real world people are dying because of these searches: police are dying, nonviolent offenders are dying, and innocent bystanders are dying. This tendency to play games with people’s lives is one of the reasons that, when people quote Henry VI about lawyers, they don’t care what Shakespeare’s original meaning was.