Is the Law Accountable to Itself?


Imagine a man walking into a courtroom, head held high and asserting confidently to a judge, “Yes, your honor, I killed that man. But, at the time that I committed this murder, I was the first ever to commit murder by stabbing him with a roof shingle in the eye. Since no case has ever found that this is murder, I should be set free, despite my obvious guilt.” It is virtually impossible for us to fathom such a defense ending in anything other than a death penalty, the lack of remorse, if not outright pride, treated as an aggravating factor. Yet, such defenses are actually not just quite common, but depressingly successful, and are used by the least likely of suspects: law enforcement officials.

For the average person, they are expected to know the law, no matter how obscure or hard to understand, on pain of imprisonment. “Ignorance of the law is no excuse” is a famous maxim of the courts, and no shortage of people have been fined and incarcerated under legitimate, good faith error. But due to a series of bad Supreme Court cases, starting in 1986, the situation is exactly the reverse for government officials, especially law enforcement. Citing “qualified immunity”, a term invented out of nothing by the Courts in recent decades, police and other officials can wantonly violate the Constitutional rights of the citizen with impunity, claiming that the exact violation they committed has never been found to be illegal before by the Courts. If it is not such “clearly established law”, meaning the EXACT situation must have been found wrong in the past, the official will usually get away with it.

Some of these defenses would be comical, if not for the damage they wreaked on individuals’ lives. In Illinois, to prove that a 17 year old boy was the sender of nude pictures from his phone, the police made him strip naked and masturbate, while they videotaped it, to see if the erect penis looked like the one in the photo received on his girlfriend’s phone. They nearly succeeded on their claim of qualified immunity, losing by one vote, which added approximately 2 years and 250,000 to the plaintiff’s legal burden to sue. In an Illinois federal prison, inmates were made to shatter mercury filled bulbs without protection in a small room, risking serious medical injury, in violation of federal law and BOP policy. Officials won the dispute, because it wasn’t “Clearly established” that that specific toxin was Constitutionally unacceptable, unlike cigarette smoke. Police officers used a bomb robot to blow up the apartment of a non-violent criminal. When called to account, they admitted they knew that blowing up buildings was illegal in general, but argued that the law never specifically mentioned the use of robots to blow up buildings. The claim succeeded. In another claim that made it’s way all the way to the Supreme court, various plaintiffs beat and permanently injured men they knew to be innocent in military prisons to try and obtain false confessions to terrorist activities. While they knew their actions were morally wrong, and amounted to torture of innocent men, prohibited by the Geneva Convention, they said they were iffy on whether breaking fingers was bad enough to count. A divided Supreme Court decided it was enough of a grey issue to dismiss the case.

The matter has gotten so serious that 13 of these cases have made their way back to the Supreme Court, asking them to overturn, or at least seriously curtail, this disastrous doctrine. The cases at issue involve truly egregious and shocking conduct by law enforcement officials. In one, police shot a 10 year old boy laying on the ground while trying to shoot his miniature pet dog, neither of which posed a threat to police, which required the halt of chasing a fleeing criminal. No one ever seriously explained how a good faith shooting of this nature could occur. In another police viciously assaulted a victim of domestic violence, breaking her collarbone, after responding to a 911 call. Their excuse? She didn’t come when called, ignoring that victims have no legal obligation to police. Yet another involved theft of hundreds of thousands of dollars of jewelry during execution of a search warrant. All of these officers were found to be exempt from suit.

No private individual would be able to raise such a defense. Shooting an unarmed child, for no reason, is so clearly morally wrong that no law need be written to “specifically address” that “exact scenerio”; It would be wrong in the absence of law entirely. It is also unquestionably illegal, and put in clear enough terms to understand. So, too, the “she didn’t do what I told her” defense never works for domestic abusers, so why should it work for police responding to a domestic abuse. Calling 911 should not subject a battered spouse to more battery, it should protect them from it. The police are in the same exact shoes as the perpetrator. So, too, an average person would know that filming a minor engaged in any sexual activity, for any purpose, is clearly child pornography, and therefore illegal. If blowing up someone’s apartment is illegal, as it undoubtedly is, the means one uses to do the proscribed act are irrelevant. Even were a “good faith ignorance of the law” defense available, it would be rapidly rejected if raised in any of these cases.

Qualified immunity then is flawed primarily because it holds the law enforcement agent to a lower standard than the average citizen. Yet, if the police officer does not know the law, how can he properly enforce it? Why should a man tasked with investigating and arresting for violations of law be given more latitude than the average man? This standard is entirely backwards then. And, until the Court invented this bizarre standard, it was exactly the opposite.

This doctrine only protects the wanton lawbreaker, for immunity only attaches to violations of constitutional rights, and is unnecessary to serve any valid societal goal. In every other profession, we understand that refusal to hold the guilty to account harms both the profession and those it serves. Doctors thus have no immunity to lawsuit for error leading to serious injury or death. Food service workers may not plead a defense against serving tainted or spoiled food that sickens their clientele. Babysitters who injure their charges through neglect or abuse have no defense at law simply because they provide a needed and useful service. Indeed, the very importance of their professions usually subjects them to a higher standard of care, lest they endanger the public. By requiring them to act at the risk of liability, we claim we are inspiring them to take care. To do otherwise would imperil the public.

This is more true of civil servants with the power of law behind them. The power of the position itself tends to lead to abuse. Removing all oversight and correction simply insures that any reason to take care is abandoned. Without the risk of some liability, enforced by an outside agency, there is too much risk that officers will abuse their position, as the cases show time and time and time again. This diminishes respect for law, it is true, but, more importantly, it tells officers they have a free hand to do as they please. And it tells victims they have no recourse.

As the Supreme Court hears these cases, they have an opportunity to fix this very real problem that is one entirely of their creation. For more than 30 years, they have tacitly encouraged lawlessness and corruption in the careers where it is least welcome, and least able (or willing) to police its own abuses. By allowing, and actually encouraging, the tainting of the men and women sworn to uphold the law, they taint the law itself. As the Court itself has noted, “Justice requires the appearance of justice”. So long as this doctrine remains in place, that appearance is missing. And it is highly unlikely that, if it looks suspect from the outside, that it is operating well. Reforming or removing this doctrine would not fix the justice system, but it’s a very important first step. Holding the lawman to at least the same standard as the citizen, and not making excuses for his illegal acts, is an essential ingredient in a fair system. If we would not tolerate such behavior from the local hot dog vendor, why would we encourage it from the policeman?

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