Tag Archives: civil liberties

A Right Without a Remedy

WEB_GPSEdLate in 2016, the Supreme Court of the United States held that a detaining a man without a warrant and without reasonable suspicion or probable cause did not require the exclusion of evidence seized on his person because an outstanding municipal warrant “attenuated” the search of the man from his unlawful detention. Utah v. Strieff, 136 S. Ct. 2056, 2064 (2016) (“We hold that the evidence Officer Fackrell seized as part of his search incident to arrest is admissible [at trial] because his discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to arrest.”) (emphasis supplied). This principle is known as the “attenuation doctrine.” Hudson v. Michigan, 126 S. Ct. 2159 (2006). The test for whether or not a court should apply the attenuation doctrine to forgive a violation of the Fourth Amendment asks judges to consider (1) the temporal proximity between the initial unlawful detention and the search; (2) the presence or absence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. When considering this last factor, evidently, the mere fact that an officer lacked probable cause or reasonable suspicion is not enough for the misconduct to be “flagrant.” Strieff, 136 S. Ct. at 2064 (citing Kaupp v. Texas, 123 S. Ct. 1843 (2003)).

What you need to know about Strieff is that there are, literally, millions of municipal warrants floating in the ether of the United States criminal justice system. These are warrants for arrest instructing officers across the land to pick up people who didn’t pay their traffic fines, failed to appear for a court setting, did appear at the court setting but didn’t communicate that fact to the judge correctly, etc. Quite often, the people with municipal warrants are not what you’d consider “hardened criminals.” Practically everyone has had a municipal warrant for their arrest at some point in their life, or came vert close to having one issued. As with most aspects of the criminal justice system, the people most likely to have unresolved warrants are poor.

The only way to logically read Strieff is that someone with an outstanding warrant does not have the protections of  Fourth Amendment. Conventionally, if you are detained because of arbitrary circumstance – you’re a different race than the officer pulling you over; the officer doesn’t like you because you didn’t donate to the Sheriff’s office  Christmas charity drive, you drive the same kind of car as the officer’s ex-wife – anything that the officer finds in your car or on your person can’t be used as evidence against you. In the law, this is called the “exclusionary rule.” But under Strieff, if you have an outstanding traffic warrant – never mind that the officer didn’t know that when he detained you, or that it has nothing to do with what you’re being pulled over or investigated for – the evidence gets to be considered by the jury at your trial. No, not your trial for the speeding ticket you had a warrant for. The one for the new possession of marijuana charge you’re going to be booked for when the officer finishes arresting you.

To many, including counsel for Mr. Strieff before the Supreme Court, this reasoning is terrifying. Given that there are millions of unresolved traffic warrants, officers now have no reason not to pull you over arbitrarily; there is a decent chance if you’re living in an impoverished zip code  that they’ll be able to use the warrants to cover up their wrongdoing. Not to worry, says the Supreme Court! The police would never overstep their authority like that, in the mind of Justice Thomas; if they do start engaging in this kind of dragnet policing, they’ll be sued:

Second, Strieff argues that, because of prevalence of outstanding arrest warrants in many jurisdictions, police will engage in dragnet searches if the exclusionary rule is not applied. We think this outcome is unlikely. Such wanton conduct would expose police to civil liability.

Let’s actually consider that premised for a moment. By and large, police officers are indemnified; they will not be personally liable for their misconduct no matter what happens in civil court. Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885 (2014). Police departments can be sued, pursuant to 42 U.S.C. 1983, but to do so the plaintiff must overcome the doctrine of Qualified Immunity. This principle, which acts as a defense to Section 1983 suits across the county, is largely an animal of judicial interpretation. Messerschmidt v. Millender, 132 S. Ct. 1235, 1244-45 (2012) (“‘The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” (quoting Pearson v. Callahan, 129 S. Ct. 808 (2009)). It protects “all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011).

The validity of this doctrine is often questioned and criticized. I strongly encourage you to familiarize yourself with the literature on the subject. But more importantly for our purposes, Justice Thomas’ remark about civil liability seems to place America at a crossroads. We have watched, for thirty years, the applicability and relevance of the exclusionary rule shrink as law enforcement arrest more and more people. The prevailing trends in the Fourth Amendment have rendered it meaningless for many accused citizens. Seemingly, if this trend continues, something should exist to take up the slack. Civil liability is not an adequate alternative to the exclusionary rule, but it is at least a tangible way to enforce civil rights and hold violators accountable. But if Justice Thomas’ remarks are to have any meaning, the principles underpinning the doctrine of qualified immunity must be rejected, and heavily overhauled. In Justice Thomas’ own opinion, he notes that the lack of probable cause or reasonable suspicion is not enough for a fourth amendment violation to satisfy the “flagrant misconduct” prong of the attenuation doctrine. How, one wonders, is an action not flagrant enough to overcome this flimsy exception to the exclusionary rule going to be adequately flagrant to constitute a violation of “clearly established statutory or constitutional rights” to overcome qualified immunity. Under the present state of the law, it cannot.

The doctrine of qualified immunity, to my way of thinking, is far too old-world-Europe in its formulation. The very notion that, in the United States of America, there is a “sovereign” entitled to unfettered administration free of the worries and harassment associated with being sued is antithetical to democratic liberty. We don’t have a king sitting atop an unassailable pedestal. This is a country with state mottoes like “thus always to Tyrants.” The only reason not to “hold the police accountable” in civil court is to have a robust exclusionary rule to protect us from their overreach. Since opinions like Strieff undermine our confidence in this approach daily, it is incumbent on the courts and the legislature, in equal measure, to at least allow us some alternative method of bringing the beast that is law enforcement to heel.

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Nemo Me Impune Lacessit

By day, I work as a criminal defense lawyer. The other day, in the course of my professional duties, I had to take a stroll by the San Antonio Police Department headquarters on Cesar Chavez Street (the road once went by the moniker “Durango Street” which I though had a better ring to it). Near the main civilian entrance, I happened upon an inscription:

“Nemo me impune lacessit.” 

A life long Latin lover, I couldn’t help but smile.  The phrase has murky origins in Antiquity, although it later became the motto of the Scottish order of chivalry – the Order of the Thistle. Translated, the phrase means “No one challenges me with impunity.”

The phrase strikes me as an odd choice for an American police department decoration.  Ultimately however, I’ve concluded that a historical disagreement in the translation of the  Latin verb Lacessit fated the SAPD to become the butt of a beautifully ironic joke. 

In the United States, the phrase has taken on another meaning. It is frequently worn by law enforcement as a sign of mourning or solidarity after an officer is killed on duty.  The sense in which American police use the phrase is “no one can harm me unpunished.” I think that a closer scrutiny of the Latin rejects this translation.

The word “Lacesso” is defined as “to excite, provoke, challenge, exasperate, or irritate. A Latin Dictionary 1026, Ed. Lewis and Short,  (Oxford 1879). A fine example of its literal usage can be found in Cicero’s defense of Titus Annius Milo in 52 BC.   Pro Milo 31, 84, Marcus Tullius Cicero, Ed. Albert Clark (1918) (perhaps the finest, albeit long winded, closing argument in a self-defense murder trial the criminal defense bar will ever know). Cicero’s use of the word connotes physical violence; however, on a deeper level, the word’s placement indicates that such a “challenge” is more than an angry brawl – it implies a degradation of freedom or of self-determination:

That divine power; that very same divine power which has often brought incredible prosperity and power to this city, has extinguished and destroyed this mischief; by first of all inspiring it with the idea of venturing to irritate by violence and to attack with the sword the bravest of men, and so leading it on to be defeated by the man whom if it had only been able to defeat it would have enjoyed endless licence and impunity.

Id. In this context, it implies a certain degree of metaphysical naughtiness on the part of the actor that suggests his comeuppance will flow from divine providence rather than State action.  I think it is this connotation of the morally repugnant irritant that inspired the Scottish Order of the Thistle to adopt the word into its motto.  The code of chivalry is enforced not merely by the sword, but by virtue of its moral superiority. 

The chivalric mentality arrived in America with a considerable amount of damage in the shipping process.  The word doesn’t get much airplay outside the context of the occasional opening of a door for a woman going into the bank, but the sanctity of the individual which lies at the heart of chivalry spread into the thoughts and precepts of our nation like wildfire.  The democratization of chivalry can be tied directly to the thought processes of Locke and Rousseau, Franklin and Jefferson. In essence, as the bourgeois adopted the parlance of the landed gentry, the individual grew to believe that he could and should police himself; his internal motivation to preserve his honor, it was believed, would trump the external pressures of life that trend toward the vulgar.  Does this theorem work in practice? Yes and no.  People are, as they have always been, a rather nasty lot. But the idea of chivalric honor and individual service to others does seem to gently prod the human race in the right direction.  As the motto at the heart of this article implies, the karmic consequences of the alternative serve as a decent incentive.

Before the poor reader begins to smell a digression, it would be best to return to the central premise discussed above – irony.  The problem I find with the SAPD’s use of this inscription comes from my love of the individual and my disillusionment towards institutions – Law enforcement institutions in particular.  Usually, when the police adopt a slogan, its quite easy to smirk or ridicule. “Serve and protect” might be more adequately phrased “search and seize” or “arrest and obfuscate,” particularly if we are polling those who most frequently come into contact with the police.  This Latin motto is something entirely different. The more careful translation suggests that it is a slogan of individual liberty, a warning to tyrants; however, the Department’s approach suggests a more “no one challenges the authority of the state” slant to the quotation.  If Caesar in all of his imperial zeal coined this phrase, I can only imagine that he would have approved the SAPD’s choice. The phrase that worked as a badge of honor for the individual has now become a cold inscription on the Ministry of Love.

Some might contend that this is too harsh. The injury threatened against those who serve in the police force is real and terrifying, and the phrase (as the department uses it) promises vengeance to those that would do an officer harm. On its face, this is not an unreasonable point of view.  The tragedy of the matter, however, is the “us v. them” mentality such a slogan implies.  When those in law enforcement view its citizenry as “the other,” serious problems lie in ambush.  It is injury to the law that the police must protect; the physical toll of wrongdoing cannot be undone.  The only true preventative measure for that deep of an injury lies in education and in compassion for the individual. To achieve those ends, we must police ourselves. Placing too much stock on the authority of governmental institutions to police us works only to deny the individual his freedom and dignity.

At the most basic level, this means holding law enforcement accountable when it begins to “lacesso.” Michelle Alexander’s book “The New Jim Crow” studiously documents the culture of perjury rampant amongst police departments in this country.  Is this how departments apply the concept behind this ancient phrase? Brutality, botched arrests, disregard for the privacy rights of citizens; are these not injuries which must be thwarted before they are committed with impunity? Institutions should be challenged. When the police look on the challengers with contempt or aggression, the proof of their folly now hangs above the door to the department. Perhaps, with the help of men like Cicero, we can requisition this phrase from our captors and carry it as our own battle standard.

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