Memo To 8th Circuit: Fairly Inexplicable Doesn’t Mean What You Think It Does

The 8th Circuit made short shrift of the absurd arrest of Frank Snider for desecrating the flag. No big surprise there, as Snider v. City of Cape Girardeau was a slam dunk.  But then it raises the hoary question of how neither the cop, the prosecutor nor the judge who signed off was aware that the law in the United States of America allowed a guy to use the flag to express himself?  After all, it’s only been the law since 1989, when the Supremes decided Texas v. Johnson.

But the circuit went on to deal with the issue of Police Officer Matthew Peters’ qualified immunity.  After all, it’s not like Peters busted Snider on the spot. Oh no. He followed the procedure that we all hope an officer would follow.

Upon Officer Peters’ returning to the station, another officer informed him of a Missouri statute prohibiting flag desecration. After reviewing the statute, Mo. Rev. Stat. § 578.095, Officer Peters drafted a probable cause statement indicating he believed Snider had committed the criminal offense of desecration of the American flag. He submitted the probable cause statement to Cape Girardeau County prosecuting attorney H. Morley Swingle. After reviewing the probable cause statement, Swingle submitted a warrant application to the Honorable Gary A. Kamp, Circuit Judge of Cape Girardeau County, who issued the warrant for Snider’s arrest.

Peters did everything right. And yet, it was all wrong.  The circuit opinion, by Judge Kermit Bye, had a problem to deal with, and so:

A reasonably competent officer in Officer Peters’ position would have concluded no arrest warrant should issue for the expressive conduct engaged in by Snider. Although it is unfortunate and fairly inexplicable that the error was not corrected by the county prosecutor [H. Morley Swingle] or the magistrate judge [Gary A. Kamp], no warrant should have been sought in the first place. Thus, the district court correctly concluded Officer Peters was not entitled to qualified immunity.

It was certainly unfortunate that neither prosecutor Swingle nor the Honorable Gary Kamp knew that Peters’ warrant app was for a flagrantly unconstitutional crime, but it was hardly “fairly inexplicable.”

Not only did the circuit hold the dope in the room accountable, while sloughing off the responsibility for the guys who are trained to know better, not to mention the Honorable guy whose duty it is not to sign off on crap like this, but it gave them a free “get out of stupid” pass on it.

There is an explanation for it, dear Judge Bye.  You know it. I know it. We all know it.  Trying to slide this under the radar by calling it “fairly inexplicable” is not only disingenuous, but cowardly.

The other day I made a point that the good faith presumption wasn’t to blame:

We are a nation of laws, not men. That’s because men are flawed. Don’t blame the law. Blame the cowards, the ignorant and the venal.  And do something about them.

You had the opportunity to do something about it, Judge Bye. You failed. You probably thought no one would notice. You were wrong.


10 thoughts on “Memo To 8th Circuit: Fairly Inexplicable Doesn’t Mean What You Think It Does

  1. DDJ

    …but unfortunately “Judge” Bye, nor any others of his ilk, care a jot that you or anyone else notices because nothing will happen to any of them.

    They are all part of a glad-handing, Good Ole Boy’s network that has evolved through a lack of any meaningful way to hold these people accountable, not only for simple-minded negligence, but for outright malfeasance.

    They and their slipshod (or self-interested) conduct do more than all the Taliban combined to compromise the integrity of this country.

      1. DDJ

        lol… I’m in a mellow, conciliatory mood today.

        Hava good one; thanks for more engaging, thoughtful posts.

  2. John Burgess

    Given the absolute immunity accorded prosecutors and judges, what — other than calling them out by name — could the 8th Circuit do? Could it have referred them to the local bar for disciplinary action or remedial law classes? Actually naming names seems like a big thing under the circumstances.

    1. SHG Post author

      Naming names is part way there. The other part is calling the offending conduct out in truthful terms. It matters to them, even if we think they shrug it off, and regardless, it may not be enough but let the court at least be responsible enough to do what it can.

    2. Lurker

      Theoretically, the Circuit could send a recommendation to the Missouri commission on retirement, removal and discipline, informing them that it finds the magistrate judge in question to be grossly incompetent and negligent in their duty and suggesting the commission to take appropriate action.

      If they wanted to make an even stronger point, they would send a copy of the decision to the Missouri state legislature, recommending that impeachment proceedings be initiated.

      Technically, it would be little different from sending a decision to a bar association for further disciplinary measures. However, such grandstanding would be likely useless, because the state was supporting the police in this case and arguing for the constitutionality of the flag desecration statute. They would take no further action, making the Circuit a laughingstock.

  3. John Barleycorn

    “Notified” would make for a good western genera movie title.

    Not sure if you should be with or without spurs though?

  4. David Woycechowsky

    Something I have long wondered, but never seen addressed is whether absolute immunity extends to section 1983 claims for injunctive relief. Perhaps a creative way to get at judges and prosecutors is to seek injunctive relief. I am aware that there is some highly unfavorable law with regard to injunctive relief against police officers for civil rights violations, but I am not convinced that the reasoning of those injunctive relief case(s) (it is mostly just one case) is particularly applicable as it regards absolute judicial / prosecutor immunity.

    1. SHG Post author

      My gut is that it would be conceptually impossible, as both official positions require the exercise of discretion by definition.

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