Nel's New Day

December 16, 2014

Cops above the Law, SCOTUS Rules

Ignorance of the law is no excuse has long been a canon in our country. People unaware of laws cannot use that excuse to escape liability for breaking these laws. No one is above the law. That’s another legal principal, that every citizen is subject to the law, even the lawmakers. Yesterday the Supreme Court threw out both those principles.

After police pulled over Nicholas Heien for having a broken taillight and searched his car, the cocaine they found was used as legal evidence in a trial. In North Carolina, however, having one broken taillight is not a violation of the law. In Heinen v. North Carolina, justices used the question of “reasonableness” to determine that the police officer was within his rights to search the car because other language suggested “other” lamps be in “working order.” The North Carolina Supreme Court had held that “other” lamps does not refer to taillights.

Eight justices, however, ruled that the police made a “reasonable” mistake in pulling over Heien for having one broken taillight. Chief Justice John Roberts noted that the keystone of the Fourth Amendment ban on unreasonable search and seizure is the word “unreasonable.” According to him, the belief by the police that the broken taillight was illegal could be regarded as a reasonable mistake.

Ruth Bader Ginsburg and Elena Kagan would have stopped there because the law might have seemed unclear. Writing for the majority, though, Chief Justice John Roberts stated that “investigatory stops,” those when police stop someone and may question, frisk, or search them, are not held to the same standard as criminal convictions. He described “ignorance of the law is no excuse” as a maxim with “rhetorical appeal,” not worthy of serious consideration—at least in investigatory stops.

“[J]ust because mistakes of law cannot justify either the imposition or the avoidance of criminal liability, it does not follow that they cannot justify an investigatory stop.”

Justice Sonia Sotomayor, a former prosecutor, stuck with the principle of “ignorance of the law.” She wrote:

“One wonders how a citizen seeking to be law-abiding and to structure his or her behavior to avoid these invasive, frightening, and humiliating encounters could do so.”

According to Sotomayor, the court was “further eroding the Fourth Amendment’s protection of civil liberties in a context where that protection has already been worn down.”In a reference to current problems of broader permissiveness for police regarding community mistrust and police brutality, she also wrote about the “human consequences … including those for communities and for their relationships with the police.” She concluded that the cost of accepting “ignorance of the law” is far less than the much greater consequences of permitting police to claim ignorance any time they want to stop someone.

This decision follows the court’s support of police although “reasonable” people might disagree with the legality of law enforcement’s actions. Over two years ago, a 5-4 decision in Florence v. Board of Chosen Freeholders of the County of Burlington, New Jersey ruled that New Jersey could strip-search a man who police thought had failed to pay a traffic fine.

Albert Florence was a passenger in the family care with his pregnant wife driving and their four-year-old son in the back seat. Because Florence had been picked up several times after paying the fine, he carried a letter proving that he had paid. Yet he was handcuffed, arrested, and taken to jail where he was subjected to an invasive strip and visual body-cavity search. After six days in the county jail, he was transferred to a Newark correctional facility where he was again invasively searched before being put into the general prison population. The next day he was freed after a magistrate confirmed that the fine had indeed been paid. The Fourth Amendment protects against “unreasonable searches and seizures,” but rights for many people disappeared after 9/11.

Since the recent high-profile cases of several possibly unwarranted killings, black people have been increasingly concerned about police brutality. Two Portland (OR) lawyers have created a smartphone app, “Driving While Black,” to educate the audience in self-protection.

Melvin Oden-Orr, one of the creators, stressed that users should definitely not search the app after they are stopped. One tip is avoiding any moves that might cause police to think that a person is reaching for a weapon. The key to surviving a traffic stop, according to the creators, is to remain calm, keep your hands on the wheel, be respectful and make no false moves. The apps include a directory of lawyers for drivers who believe they were wrongfully stopped or searched.

If the phone is in a hands-free device, the app allows drivers to alert friends and family that they have been pulled over. It also has a recording function to document the interaction which—unlike what many police have claimed—is totally legal.

This app will be released in December, but there are other apps dealing with law enforcement interactions. Three Georgia teenagers created “Five-O,” which allows people to rate their interactions. Last month, ACLU affiliates in four states started “Mobile Justice,” letting people video police encounters which are then uploaded to the ACLU. Its model is “Stop and Frisk Watch,” an app started in 2012 for people in New York. This app stops filming when the device is shaken and alerts people when other app users in the area record police activity.

The New Jersey ACLU affiliate has “Police Tape,” allowing recording video and audio; the free app disappears from a phone’s screen at the beginning of the recording and also sends a copy to the New Jersey ACLU. The ACLU apps all include a section called “Know Your Rights.”

Law enforcement officials frequently tell people that recording them is illegal and take the recording devices. People have been arrested for doing this in Seattle, Minnesota, Miami, Baltimore, Richmond, and far more places. Because of these arrests, the United States has dropped from 20th place to 47th in the rankings for media freedom by Reporters without Borders.

U.S. circuit courts are showing police departments that recording their actions is legal. For example, Simon Glik received $170,000 from Boston after he was arrested for recording an arrest. Glik, a criminal defense attorney, said he made the recording because he thought the police were using excessive force. The First Circuit Court agreed with Glik that he could legally record the arrest because he did not interfere with the police.

Another appeals court struck down an Illinois law in May 2012 that had made it illegal for citizens to record on-duty police officers. And earlier this year the Civil Rights Division of the Department of Justice affirmed the constitutional rights of citizens to record the police in public.

The term “driving while black” has been commonly used for years, and a Justice Department report from last year showed that blacks are far more likely than white to be stopped and have their cars searched. Portland attorney Mariann Hyland has been thinking about the issue since Los Angeles police beat motorist Rodney King in 1991. In 2003, Portland police shot and killed a 21-year-old black woman after she jumped to the driver’s seat from the back seat during a traffic stop and tried to drive away.

It’s a tragedy that a country touting itself as a bastion of freedom needs apps for some of the citizens to protect themselves from the police. If you find yourself in this situation and record police misconduct or brutality, here’s another piece of advice: don’t give the video to the police. Instead, anonymously upload it to YouTube.

Activist Dave Ridley of Keene (NH) said that those recording the police must be open and calm. As to the police order, “shut it off, or I’ll arrest you,” he suggests following the order but say, “Okay, Officer. But I’m turning the camera off under protest.” People really are arrested for recording the police even if it’s legal.

Free apps such as Qik or Bambuser will store the video offsite with either “private” or “public” settings. These apps also allow the recording to be saved if the phone is shut off. Ridley cautions to protect the device with a passcode and never give the passcode to the police. If someone is about to grab the phone, shut it off. Recordings cannot be deleted without a passcode. Bambuser continues recording after the phone is turned off.

Thanks to the Supreme Court, people may have an increasing need to record police brutality. We only hope that the same conservative court won’t tell people that recording the police is unconstitutional.

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