my pissant two cents

Monday, December 13, 2004

bottom of the ninth

the ninth circuit court of appeals is in no danger of losing its chief claim to fame: the most overturned circuit court in the country. but it's not the worst appellation an appellate court can have. when you think about it, getting overturned by the rehnquist supreme court is like being on nixon's "enemies of the white house" list.

today, the supreme court overturned the ninth circuit on two different cases, each one letting the police get away with just a little more. each one rolling back just a bit of your freedom. each one blurring the line between paranoia and rationality a little bit more.

the first case, brosseau v. haugen, is the washington state case of a police woman who shot and seriously wounded a man who was trying to drive away when she went to his home to arrest him. the man was accused of selling drugs and stealing tools from a coworker. neither of these is a violent crime, nor of itself would justify the use of deadly force. the rule regarding lethal force had been that it can only be used in self defense or defense of others, or when there was reasonable belief that the fleeing suspect posed an immediate threat to public safety.

the ninth circuit said it was for a jury to decide whether the officer used excessive force, given the totality of the circumstances. but in a 8-1 decision, the supreme court disagreed. the majority ruled that the benefit of the doubt should be given to an officer in that situation. cops should not have to make snap decisions when their and the public's safety is on the line.

well, that's fine and all. but the facts of this case are pretty clear. the suspect was unarmed, and did not threaten the officer's safety. the decision relies on the highly arguable notion that the fleeing driver might pose a safety hazard on the road, and therefore deadly force could be justified. therefore, the justices invoked "qualified immunity," the legal doctrine that public officials, including police, cannot be sued unless there is a clear-cut violation of the law. only justice john paul stevens thought the present facts were clear cut.

qualified immunity is intended to give public officials enough leeway to do their jobs without worrying about getting sued. this sounds reasonable. but in effect, it means that only the most egregious forms of police abuse are actionable.

a similar ruling came down in another washington state case, devenpeck v. alford. there, a man was stopped on suspicion that he was impersonating a police officer. when the sergeant searched the suspect's vehicle, he found a tape recorder capturing the conversation, and arrested the man for violating the state's privacy act. when the state court threw out the charges, the man sued. interestingly enough, the suspect had greater knowledge of the law than the police sergeant, and carried a copy of the state court case that allowed him to record police officers in the course of their duties in his glove box. but the sergeant never looked at it.

this would be a case of "willful blindness," wherein somebody deliberately ignores something that would compel him to act in a particular fashion. for example: if you don't know you can't arrest a man for tape recording you, then there's nothing to stop you. this willful blindness alone should have been enough to let the suspect's case go forward.

but again, the supreme court didn't think so. in an 8-0 shutout (rehnquist did not partake in the decision), they decided that since the suspect could have been arrested for impersonating an officer, the fact that he was improperly arrested only for the tape recording is irrelevant. not even justice stevens argued this point.

one of the bitterest moments in law school is when you realize that the great notions captured in the bill of rights are phantasms. they appear to be solid, indomitable, unrelenting. but you read in case after case how those rights are minimized, neglected, and disregarded, until they are empty shells. it's like watching the heavyweight champ get beaten to death by a moth. it doesn't seem like much is happening, but eventually the big man falls.

these two cases are like the flapping of that moth's wings. a couple of more hits, and the boxer's knees wobble. a couple more, and his eyes glaze over.

how many more shots can he take before he hits the canvas?


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