Ignorance Of The Law Is No Excuse, Court Tells Cop

from the one-small-stopgap-in-a-torrent-of-unearned-forgiveness dept

We've grown accustomed to law enforcement being given a pass for not knowing the laws they're enforcing. A 2014 Supreme Court decision made being ignorant precedential, providing cops with an out citizens can't use. Ignorance of the law can be the best excuse when it's a cop trying to keep his evidence from being thrown out of court.

With rare exceptions, courts have said it's okay for officers to predicate stops on perceived traffic violations, rather than actual traffic violations. Officers really have to make an effort to run afoul of the Supreme Court-created Fourth Amendment loophole.

Another rare exception to the Heien rule has surfaced. The Kansas State Court of Appeals has denied an officer's attempt to salvage a stop and the evidence derived from it by asking for an application of the "ignorance of the law is an acceptable excuse" band-aid. The appeals court isn't willing to allow an officer's personal interpretation of motor vehicle laws to stand in for the actual wording of the law used as an excuse to pull a driver over. (via The Newspaper)

In this case, the driver was ultimately charged with DUI and not operating a vehicle with an ignition interlock device. The defendant argued the stop wasn't reasonable under the Fourth Amendment because the violation stated as the reason for the stop wasn't actually a moving violation.

The officer argued it was. At the center of the case were the vehicle's tail lights. The left light was broken. The other two -- right and middle -- were still functional. Highway Patrol Officer Reed Sperry testified that he was mistaken about Kansas' tail light law. From the decision [PDF]:

Sperry admitted that he misunderstood the law about brake lights. He testified that he mistakenly believed that Lees' brake lights needed to be as widely spaced laterally as practicable and mounted at the same height. In other words, he thought that both the left and right brake lights had to be working and that the middle brake light did not count. Sperry testified that he stopped Lees for a brake light violation, and he said nothing about any intent to perform an inspection under K.S.A. 8-1759a.

Despite this, the state argued that the officer's mistake shouldn't result in the suppression of evidence. It pointed to the Supreme Court's Heien decision while arguing the officer's "reasonable" mistake did not make the stop unlawful.

First, the state appeals court goes to the state law to see if it contains any ambiguous language. Nope.

In Kansas, the requirements for stop lamps are set forth in K.S.A. 8-1708(a) which states that "[e]very motor vehicle . . . shall be equipped with two (2) or more stop lamps meeting the requirements of subsection (a) of K.S.A. 8-1721."

K.S.A. 8-1721(a) states: "Any vehicle may be equipped and when required under this act shall be equipped with a stop lamp or lamps on the rear of the vehicle which shall display a red or amber light, or any shade of color between red and amber, visible from a distance of not less than three hundred (300) feet to the rear in normal sunlight, and which shall be actuated upon application of the service or foot brake, and which may, but need not, be incorporated with one (1) or more other rear lamps."

As the court notes, the undisputed evidence shows the driver's car had two (2) working tail lights, even with the left side light burnt out. The US Supreme Court's decision happens to be directly on point, since it also deals with tail lights and state laws. Surprisingly, this doesn't help Officer Sperry. In the Heiein case, the law used to predicate the stop was unclearly-worded. The same can't be said for the Kansas law.

Applying Heien and Pianalto, the State asserts that Sperry's mistake of law about the brake light violation was objectively reasonable, rendering the traffic stop lawful. But as Lees points out in his brief, the statutes at issue in Heien differ from the statutes at issue here. In Heien, it was ambiguous how many functioning brake lights the statute required; but the Kansas statutes are clear that only two functioning brake lights are required.

Again, the definition of "reasonable" must be applied to the officer's misinterpretation of the law. Remarkably, the Kansas appeals court says the standard of reasonableness for officers is higher than the standard for citizens.

Reading K.S.A. 8-1708(a) and K.S.A. 8-1721(a) together, no reasonable officer would think that the law required brake lights to be spaced laterally as far as practicable and mounted at the same height, as Sperry wrongly believed; neither statute suggests such a requirement in any way. Granted it may be reasonable for the average citizen to believe the law likely requires left and right brake lights, but law enforcement officers are not average citizens. They must reasonably study the laws they are duty bound to enforce.

If officers are finding it difficult to stay on top of the laws they're supposed to enforce, maybe they need to have a few chats with lawmakers and remind them that quality is better than quantity. Officers expect citizens to know the details of laws officers themselves are unclear on. Courts seems to expect it, too. That's completely backwards. It's like expecting a client to know the law better than their legal representation.

But that's how law enforcement operates day in and day out. Pretextual stops happen hundreds of times a day based on legal violations officers may only think have occurred. It's not until someone challenges the stop itself in court that the reasonableness of the officer's actions is even questioned. What we see on the surface in the handful of cases that reach this level of review is only a tiny percentage of the legally-unreasonable stops made daily by law enforcement. And it's unlikely to change until more courts hand down decisions like this.

Filed Under: heien rule, ignorance of the law, kansas, police, pretextual stop

Qualified Immunity Contradicts Congressional Intent. It's Time To Kill It Off.

from the and-dance-on-its-grave dept

The doctrine of qualified immunity was conjured up by the US Supreme Court in 1982 and victims of rights violations have been paying the price for more than three decades. The doctrine was created by the Court, not by Congress. This is an important distinction, especially since qualified immunity directly contradicts the liability Congress created as an avenue of redress for citizens.

Congress specifically said anyone who uses governmental power to deprive others of rights can be sued.

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…

These were the only exceptions granted:

… except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.

Exceptions for judges. That's it.

As it stands now, qualified immunity lets everyone from cops to federal agents to IRS investigators off the hook for violating the rights of citizens. It's not supposed to be this way. Qualified immunity reverses the expectations of Congress to give government employees an easy way out. The Supreme Court felt the lack of safety valve for government employees meant they'd be too intimidated by possible liability to make quick judgment calls while performing their duties.

Instead, the doctrine has encouraged government employees to engage in blatant rights violations, secure in the knowledge the court-established doctrine will get them off the hook.

David French, writing for the National Review, says it's time for qualified immunity to die. Its burial would allow the nation to go back to what Congress intended: an avenue of recourse for citizens whose rights have been violated by the government. The key linchpin in qualified immunity determinations is "clearly established law." But what does "clearly established" mean in the context of a QI defense? Almost nothing.

[T]he entire notion of “clearly established law” rests on a series of absurd, fantastical premises. Are we really to believe that a police officer doesn’t know he shouldn’t pound on the wrong door and blow away the innocent occupant* unless a court said so in a case, say, five years before? Do we really believe police officers and university administrators are diligently reading such cases as they are decided anyhow?

Also note how qualified immunity flips the meaning of the statute upside-down. Section 1983 is a law designed to protect citizens and help them secure their rights. It was not designed to protect the “vigorous exercise of official authority” but instead to restrain that authority.

*Refers to the case covered here.

Judge Don Willett, writing for the Fifth Circuit Appeals Court, pointed out the ridiculousness of relying on "clearly established law" to determine whether or not government employees should be held directly accountable for unquestionable violations of citizens' rights.

Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

With few courts willing to draw the line in new cases, there's no precedent to look to when new troubling violations are alleged. The government can get a lawsuit dismissed in the first round of motions if there's no case directly on point in the jurisdiction handling the case. As Judge Willett pointed out, this only encourages novel rights violations, rather than deter future misconduct. To prevail on a QI motion to dismiss, a government defendant need only be the first to violate someone's rights in this manner.

Knowing that's the bar that must be hurdled to survive the initial round of motions in a civil rights lawsuits, future novel violations will likely never be converted into "clearly established law" cited by future litigants. Julian Sanchez's Twitter thread on the subject notes one side effect of three decades of qualified immunity is fewer civil rights lawsuits.

First time around, the right violated won’t be “clearly established,” and the official responsible will have qualified immunity. The second time very similar facts show up in court, though, the first case will have “clearly established” the right violated, eliminating immunity.

But think about how this effects incentives to litigate. If the specific harm you suffered isn’t “clearly established’ in your jurisdiction, you’re incurring the cost and hassle of a lawsuit, but you won’t recover damages. You’ll only allow the NEXT victim to recover.

The arguments for keeping the qualified immunity intact are weak. Holes have been poked in these by multiple lawyers and law profs, but the doctrine lives on, propped up by the parade of litigation that would certainly result if government employees were held directly responsible for their actions.

One of the weakest of the arguments is that the removal of qualified immunity would result in long stream of impoverished cops. As this amicus brief submitted for a QI-centric Supreme Court case points out, government employees are rarely, if ever, held directly accountable for their actions. It's almost always taxpayers paying other taxpayers for rights the government violated.

This concern is empirically unfounded. The widespread availability of indemnification already protects individual officers from ruinous judgments. A recent study shows that governments paid approximately 99.98 percent of the dollars recovered in lawsuits against police officers.

Qualified immunity lives on, and it seems unlikely the Supreme Court will revisit its own failure. That's not to say there's no chance it will happen or efforts like these are wasted. The Supreme Court recently punched a hole in the Third Party Doctrine -- another of its long-time favorites -- so it's conceivable a future ruling may substantially narrow the breadth of qualified immunity's scope. But as long as it remains in place, the public will continue to suffer for the government's sins.

Filed Under: civil liberties, civil rights, courts, ignorance of the law, police, qualified immunity

Another Court Says Law Enforcement Officers Don't Really Need To Know The Laws They're Enforcing

from the horseshoes,-hand-grenades,-and-fraud-investigations dept

The nation's courts continue to ensure that the less you know as a law enforcement officer, the more leeway you'll be granted. USA Today's Brad Heath tweeted out a screenshot from a Medicare fraud case that shows ignorance of the law is no excuse… unless you're in law enforcement.

The accused doctor sought to have the evidence suppressed [PDF] because the search warrant contained assertions that were false.

Dr. Barnes argues the affidavit erroneously states that a physician is required to meet a Medicare beneficiary in person before certifying that beneficiary for home healthcare services. According to Dr. Barnes, the applicable Medicare regulations allow this "face-to-face" requirement to be satisfied through a nurse practitioner or a physician assistant. Had the warrant affidavit contained a correct summary of the applicable law, Dr. Barnes argues the magistrate judge would not have found probable cause that Medicare fraud had been committed.

The court, however, found that errors of law are pretty much unchallengeable when it comes to warrant affidavits.

Franks does not apply to the alleged misstatement of law in this case and therefore does not preclude application of the good faith exception.

The question before the Court in Franks was whether a criminal defendant "ever ha[s] the right . . . to challenge the truthfulness of factual statements made in an affidavit supporting the warrant?" Dr. Barnes has not identified any cases extending Franks to misstatements of law. Instead, the Court's research indicates the relevant inquiry is whether the warrant affidavit contains false statements of fact. That no other court has applied Franks to misstatements of law is a strong reason for declining to do so in this case.

Why can't a defendant raise a Franks challenge alleging "misstatements of law?" Well, it's because law enforcement officers -- despite being charged with enforcing the law -- are not required to know the details of the laws they're enforcing.

As the Supreme Court recognized over 50 years ago, "affidavits for search warrants . . . . are normally drafted by nonlawyers in the midst and haste of a criminal investigation."

Which leads to this [all emphasis mine]:

As an officer untrained in the law, S.A. Bradford cannot reasonably be expected to understand the nuances of the law, especially the "maze of Medicare regulations"—as Dr. Barnes described them—at issue in this case.

As for all the nonlawyers not employed by law enforcement agencies, they're still on the hook for not knowing the nuances of the "maze of regulations" surrounding almost every business or service.

The Supreme Court gave law enforcement a "close enough" pass for traffic stops and detentions in its 2014 Heien decision, stating that officers can't even be expected to know the narrow(er) set of laws pertinent to traffic enforcement. Here, another "good faith" pass is handed out, allowing officers specializing in certain investigations (like medical fraud) to have only a passing knowledge of the laws they're using to arrest and prosecute people with.

As Scott Greenfield points out, the continued expansion of the "good faith" exception means it's far more beneficial for law enforcement officers to remain ignorant of the law than it is to strive towards expertise.

The absurdity of the court’s rationale would be good for a party joke but for the fact that this is serious. Of course, it’s true that no federal agents (and for yuks, let’s add, because he’s a non-lawyer) could know every law and regulation. The reason this is funny is that no lawyer, no judge, no legislator, no one, knows every crime. No one has even been able to count how many exist, with best guesstimates at 35,000 federal crimes (including regulatory offenses), plus all the state, local, etc., crimes on top of that. The ridiculousness of it all is manifest, but that doesn’t mean ignorantia juris non excusa won’t land your butt in prison.

What this reflects isn’t sound legal doctrine, but a policy choice: that cops get a free pass and you don’t. The less they know, the broader their authority. The less they know, the more luxurious their baseless assumptions.*** The less they know, the more we forgive their errors.

The footnote:

***For example, “I didn’t know if that he wasn’t armed, so when he reached into his car to retrieve his driver’s license, after I commanded him to give me his driver’s license, I didn’t know if he had a weapon in the car, so I shot him.” The more you don’t know, the more you’re allowed to do.

The courts don't expect law enforcement to be perfect, but they refuse to extend the same courtesy to the accused. The rationale for this double standard appears to be that law enforcement officers are on the side of good and must be indulged, while every accused citizen tends toward evil, even when it might not have been maliciousness that prompted the criminal act, but ignorance.

Filed Under: fraud, ignorance of the law, law enforcement, scams