Diary

Pendulum Swings and Emboldened Police Officers

Largely in response to what was perceived as an expansion of criminal rights under the Supreme Court leadership of Earl Warren, the Burger, Rehnquist and Roberts Courts are generally seen as rolling back some of those rights.  The question now is whether that pendulum has swung too far in favor of the police and prosecutors and if so, does this have anything to do with recent events involving police shootings of unarmed people.

Two Supreme Court cases from the 1980s dealt directly with the use of deadly force by police officers.  The Court determined in those cases that what we may perceive as excessive or deadly force is justified if the officer reasonably believed they were protecting themselves or others from the commission of a crime or possible violence.  That is a rather low standard that clearly tips the scales in favor of the police.  It also explains why that of the more than 26,000 complaints filed about police excessive force, action was taken in less than 2,000 cases.

Furthermore, the liberal decisions of the Warren Court regarding the 4th Amendment’s search and seizure prohibitions have been tightened in subsequent years.  For example, probable cause has transformed into reasonable suspicion.  Later this year, the Supreme Court will hear a case about a traffic stop of a person who slightly swerved onto the shoulder.  The officer allegedly had reasonable suspicion because the passenger lit a cigarette and pulled a hat over his eyes.  The driver had already been issued a warning ticket and should have been on his way but for the officer’s “reasonable suspicion.”  This standard clearly tips the scales in favor of police actions to the point that having a Fourth Amendment may be a quaint, obsolete thing of the past.  One understands if the Left believes the Bill of Rights is a list of “suggestions” rather than an enumeration of basic rights, but when the Right also believes this, it is truly disturbing.

There were two other recent cases where the pendulum may have swung too far in favor of law enforcement.  The first was the Maryland DNA collection case.  Although the plaintiff there was hardly a good poster boy, the fact they collected DNA against this person’s wishes and then used this DNA to link him to an unsolved rape eight years previous is disturbing.  In effect, the Supreme Court gave a green light to states to collect DNA from anyone for anything whether a court found that person guilty or innocent.

The second case came from New Jersey where a man was stopped for a traffic violation and erroneously incarcerated because another court failed not cancel a bench warrant after a fine was paid was put through the indignity of at least two intrusive strip searches while in police custody.  This was a man stopped for a nonviolent crime subjected to an action reserved for true criminals.  Lower court evidence in that case indicated that there was only one instance in the previous ten years in New Jersey where contraband or weapons were discovered as the result of strip searches.  There are other cases involving a woman stopped for not wearing a seat belt subjected to a strip search.

No one denies that police perform a very tough job and admirably so.  They certainly do not deserve the derision they are receiving today and they certainly do not deserve to be ambushed in their cars by gun-toting nut jobs with a racial score to settle.  But no one can deny that police sometimes cross over the line.  They should not be shielded by vague legal standards that tip the scales and swing the pendulum too far in their favor.

There are other major cases involving police actions which show that the courts are trying to swing the pendulum too far towards the police.  This is also revealed in cases involving instances of qualified immunity for police officers.  This doctrine asserts that public officials are shielded from lawsuits that fall short of violating a constitutional or statutory right.  In both those cases from last term, the Court unanimously decided that officers were immune.  One case involved the death of a suspect.  A 2011 case- Connick vs. Thompson- illustrates how far the pendulum has swung.  In that case, Thompson was tried and convicted for a crime he did not commit.  The prosecutor in that case held back exculpatory evidence (the blood type of Thompson did not match the perpetrator of the robbery/murder).  Although this evidence eventually came out, Thompson’s $14 million jury award against New Orleans was overturned in a 5-4 decision that stated a municipality cannot be sued for the actions of its employees.

So, why not sue the employee?  Again, the Supreme Court has stated that police officers who commit even actual perjury that results in a conviction are entitled to absolute immunity.  When not afforded absolute immunity, they are entitled to qualified immunity.  Here, they cannot be liable for monetary damages UNLESS “every reasonable officer” believed the action was unconstitutional or illegal.  That is a very tough standard to overcome if you are innocently on the wrong end of a police baton, taser, or bullet.

What can be done?  States can pass statutes that spell out the parameters of the immunity defense.  Perhaps a few high profile lawsuit and jury awards will have officers think twice in those borderline situations before using excessive or deadly force.  In the case of Michael Brown, there is substantial evidence to suggest that he reached for Wilson’s gun which is a big no-no and, thus, Wilson’s actions would have been justified.  In the case of the youngster killed in Cleveland, he pointed a very realistic-looking toy gun at police and their use of force could be considered reasonable.  In the case of Eric Garner, he was wrestled to the ground and died over the sale of cigarettes on a street corner and was unarmed.  In this latter case, it is hard to see how any officer should be afforded any immunity, yet they are.

I am not making an argument that every case of alleged police misconduct should be prosecuted before a jury.  But, there are cases that deserve a jury trial at a minimum and let the chips fall from there.  Automatic grants of immunity deny the alleged victims the justice they sometimes deserve.  Not always…but sometimes.