Security versus Liberty
The American criminal justice system inherently pits security against liberty.
On the one hand, we all want to be safe from criminals, and we pay police to provide us some of that safety, even at the risk of their own safety. On the other hand is the often-esoteric concept of “liberty” which protects us from the intrusion of the State—which usually wears a badge—but which is less immediate than the fear of someone breaking into our home.
So, we give law enforcement awesome powers and the benefit of the doubt. Only law enforcement can exercise deadly force and be presumed justified. Law enforcement are also immune from civil liability or criminal prosecution if they can make a basic (“prima facie”) case that they were acting in good faith, even if they made a mistake and kill the wrong person.
Furthermore, when a single police officer makes a finding of probable cause (a vaguely defined term that the police officer thinks it likely, or more likely than not, that a particular person committed a particular crime), he or she can arrest a person who is often then held in jail until trial. Of the 2.3 million people currently locked up in the United States, over half a million of them (536,000) are awaiting trial.
The City Pages profiled one of my cases in which a client was charged with a crime for which the maximum sentence was ten years in prison, but the charges were dropped after further investigation and dogged lawyering proved that no crime was committed. Had he not made bail (thousands of dollars he cannot recover), Mohamed would have spent months in jail awaiting trial. Aside from the obvious hardship of spending months in jail, someone in that situation loses his or her job, may lose custody of a child he or she cannot care for, has bills go into default, and suffers a lifetime stigma.
Police have the power to impose all of these hardships and indignities on a person based on a suspicion and a few hours of paperwork. And they have almost no accountability for making a mistake because of U.S. Supreme Court case law giving police almost-unlimited immunity for errors.
But once in a while, the courts claw back some of this power. Crime fighting is done by humans, some with ill will, some with good will but bad judgement. Some just overly zealous, over-worked, or having a bad day.
It has been a long time, but the US Supreme Court has acknowledged that police are “engaged in the often competitive enterprise of ferreting out crime” and, therefore, susceptible to the adrenaline and competitive fire of the job requiring restraint.
The U.S. Constitution imposes limits on the ability of police to stop, frisk, and question people (even in the free countries of Europe, citizens have to carry their “papers” and present them when asked, but Americans don’t), to search them without independent judicial oversight, and to hold people without due process. But these rights are not self-executing: they require lawyers willing to challenge police actions and clients willing to fight.
Finding a Balance
I suggest three things we can do to balance our security and our liberties: First, requiring police to maintain liability insurance might help. Individual officers whose conduct leads to too many payouts would price themselves out of the market and be unemployable.
Second, training might also help. I recently got the training records of a Minnesota police officer of whose one hundred and fifty-four (154) disclosed training courses, one hundred and twenty-one (121) were taken on-line with the same instructor who, evidently is an expert in everything from blood-borne pathogens to cell phone searches to de-escalation techniques. Of the other thirty-three courses, most were weapons training at the firing range.
In February, I published a piece in the Pioneer Press arguing for ending the practice of stopping vehicles for minor equipment violations because those stops increase the number of potentially dangerous encounters between police and citizens. That is my third proposal. Even active-duty police have confirmed that they use these equipment stops as pretexts for plain-view searches and informal face-to-face investigation. I stand by that piece: ending those stops will help prevent police over-reach, protect officers and citizens, and still allow for ticketing people for the violations. You can read the article here.
Finding the balance whereby police are not inhibited in responding to potential danger on our behalf while also restraining the instincts run amok that naturally comes from such power is a delicate task. But it is one a free people must actively engage.
When you are stopped, questioned, or even arrested, call an attorney who considers every case a matter of deep constitutional significance. Call me: 612-310-7398. Everyone’s freedom requires zealous defense.