Due Deference and The Vignette

In deconstructing the tête-à-tête between Judge Richard Kopf and Lawprof Orin Kerr the other day, I noted the “remarkable deference” shown police safety by the judge.  Judge Kopf reacted by offering a vignette involving the murder of Nebraska State Trooper George Amos in 1973.

This is not an excuse, this is not an explanation, this is not a denial and this is not an admission. Literary types might call it a vignette–a small illustration that fades into its background without a definite border.

The difference between due deference and undue deference is the accumulation of our experiences that give rise to our sensibilities.  Our lives are made up of thousands of such vignettes. They are neither right nor wrong. They simply are.

Whether we remember them explicitly or simply allow them to fade into our subconscious as a piece of the puzzle that forms the line we constantly draw between right and wrong, good and evil, isn’t important. They exist for each of us, and that’s enough.

My first reaction to Judge Kopf’s vignette was to offer one or ten of my own, but trading anecdotes is for kids.  It proves only that we remember the stories that support our beliefs, but it fails to explain why we hold our beliefs since there are always anecdotes to support all sides.  The world is never short of great and horrible stories to be pulled out as needed.

Some readers here are untroubled when a cop is harmed, even murdered. I am appalled and disgusted by this attitude, not because the individual was a cop, but because I am appalled and disgusted when anyone is harmed, even murdered.  The life of a cop matters. So too does the life of a person who isn’t a cop.

This isn’t to suggest that Judge Kopf values the life of a non-police officer less than a cop, but the fact that he offered the vignette of George Amos rather than Eric Garner suggests that there is something distinguishing about a cop.  It can’t be that the job is so dangerous, because the statistics prove otherwise. Yet, officer safety, the First Rule of Policing, weighs heavily in the balance.  My point, in noting that Judge Kopf gave “remarkable deference” to it, was that it weighed too heavily as far as I was concerned.

Two comments to Judge Kopf’s post flesh out the positions.  One, by Robert, says:

The phrase “the thin blue line”, used to describe law enforcement as the only barrier between us and the criminal element, reminds us that the barrier is temporarily broken when a police officer is attacked. Such a thing is not merely a crime but an assault on our society itself and, IMHO, worthy of the strongest possible response by the criminal justice system. Anything less is an insult to those connected to the victim, as well those who also work in law enforcement.

This reflects the appeal to emotion, invoking our fear of the “criminal element,” our appreciation of the “thin blue line” that protects us, and a fuzzy, quasi-patriotic challenge of an “assault on our society itself” that may evoke some visceral response even if it doesn’t bear up well to reason.  If we are forced to pick teams, then we choose the team of good guys rather than bad guys. If we’re three years old, this is sufficient. For grown-ups, it’s a bit simplistic.

But in another comment, a less emotionally-laden observation is made:

I do not see this as a safety issue in Rodriguez. If the traffic stop was over, let the people go on their way. If the traffic stop was underway, but the officer was too afraid to approach the car and issue a ticket, wait for backup. My understanding was that the officer only extended the stop for a drug sniff, not for safety.

If we give unfettered deference to an officer’s safety, do we not create a moral hazard? If there truly is an issue of safety, I would simply apply the exclusionary rule. If the police believe a safety search is necessary or if a stop needs to be prolonged to protect the officer’s safety, the State should not be able to prosecute for contraband found in the search. Then we will get out of the issue completely, the police will be safe and the people will be confident that the police do not have an incentive to lie about their intent simply to justify a search (the police incentive is receipt of commendations for the arrest and getting a bad guy off the street).

When the issue is remarkable deference to officer safety, the alternative isn’t to demand that officers engage in conduct they feel creates excessive risk.*  But if taking precautions that make their job safer compels them to engage in conduct that violates a person’s constitutional rights, then the solution is to suppress.  If we’re going to adopt the “assault on society” view, violating constitutional rights is as much, if not more, an assault as is harming a cop.

The upshot is the cop is safe and the Constitution is honored. This option seems to elude so many judges, who struggle to find rationalizations that accomplish both officer safety as well as excuse constitutional violations. It makes for incomprehensible doctrine, but more importantly, undermines the constitutional rights of all those people who aren’t criminals but have had their rights violated.  These are the people we rarely hear about, because after their rights are violated, they’re sent on their way.   They too have their vignettes.

But this doesn’t end the story.  Knowing that judges may have George Amos vignettes of their own, some police officers invoke his memory when there was no actual fear, to get away with conduct for improper purposes.  They play the judge. They lie. They justify it because they are the good guys, and the end justifies the means. They justify it because the mutt of a citizen deserves it anyway. They play the fear card because they can.

Not every cop is George Amos. Not every vignette ends with an officer’s murder.  Most don’t.  I could give some anecdotes here to support this position, but that would be insulting as we all know that there are anecdotes to prove anything.

*  Note that this is “excessive risk,” rather that potential risk of risk, which is just an officer’s baseless fear of the unknown and justification for harming, even killing, a person rather than face any risk, no matter how attenuated or theoretical.

9 thoughts on “Due Deference and The Vignette

  1. Richard G. Kopf

    SHG,

    Most everything your write is true. I think you understand my motivation for the vignette, but for your readers, the Amos vignette was intended to provide an insight into one experience that shapes the way I perceive the world. I did not intend to defend myself, particularly my perceptions of the world. I intended only to be transparent about who I am. Readers should also remember our discussion about my terrible problems judging credibility. These are parts of the same flawed package. In particular, readers should go back and read your prior posts entitled ” Incentives Revisited: Which Lying Liars Do You Favor?” and “Judicial Incentives: Why Judges Won’t Condemn Cops (Update).”

    All the best.

    RGK

    1. SHG Post author

      That’s how I took your post, and acknowledge that we are all the sum total of our vignettes. I attribute much of my sensibilities to my wayward youth. I will share some of my vignettes over White Russians.

  2. Richard G. Kopf

    SHG,

    The last time I drank more than one White Russian, I don’t remember the rest of the evening. I do know that a fellow lawyer from Cozad, Nebraska and one of my companions at the (literal) bar quit drinking as a result of that evening.

    All the best.

    RGK

  3. Troutwaxer

    I think the non-anecdotal approach goes something like this: The power we give the police (and judges and DAs) is enormous and it is a two-edged sword. On one hand, the power to police saves lives and gets some very dangerous people off the street. On the other, policing has a gigantic capacity to unjustly damage the lives of those who are thrown into the legal system, (as well as to damage the lives of spouses and children of those who are put into the legal system.)

    I don’t think most individuals who work policing at any level of the system; local, state, federal, officer, DA or judge are properly cognisant of the damage that can be caused by their actions or their prejudices. Most members of the system only understand one edge of the sword they wield. The inability of these individuals to understand that the powers they have been give are dangerously capable of doing unjust damage to individuals and families is a gigantic moral failing.

    Those individuals who use the other edge of their swords deliberately are practitioners of moral horror.

    To me the first duty of a judge is to understand how the people they are dealing with in court relate to this issue. Do they make the necessary moral decisions about their powers? Are they clueless about the possible damage they might inflict? Are they deliberately using their power to do some kind of harm? Then rule accordingly.

    IMHO this should not be the first duty of a judge – cops and DAs should be regularly considering this issue and it should never be the purview of the judge to deal with this problem – but the system has become pretty ugly and someone has to take on the big moral issues and if the judge doesn’t nobody else will.

    1. SHG Post author

      By using “moral” as a measure, you lose me, and likely Judge Kopf as well. Moral is subjective and personal. It’s not a basis for a legal system. If we honor the law, from the Constitution on, we don’t need to address morality. It’s in there.

      If anything, morality is the excuse to wiggle out of the stricture of the Constitution, to do one harm to prevent another harm. That’s a moral morass.

      1. Troutwaxer

        When I use the word “morality” above I’m speaking in Constitutional terms, not personal, religious or philosophical terms. That being said, I’m going to make my point of view explicit: The Constitution and the body of reasoning that has grown around it embodies a powerful, vital moral viewpoint and someone needs to be in charge of making that moral viewpoint relevant to a legal case.

        Currently I’m not seeing that happen. It’s all about “officer safety,” “the war on drugs,” “officer training” or “compliance…” plus Judge Koph’s “anecdotes,” none of which are mentioned in our founding document. Speaking as a citizen, I’m thoroughly unhappy with all this.

        1. SHG Post author

          Not to disagree with your aspirations, but there is no such thing as “morality” in constitutional terms. It’s not a constitutional concept.

  4. Fubar

    From a manuscript discovered in the early 40th Century near present day Texarkana. Believed by some archaeologists to be a judicial memorandum revealing that the prior civilization’s demise was not caused by nuclear holocaust, but by “entropic corruption of idealism”[1] inherent in the “cyclic decay”[2] of democratic republics to totalitarian states. Others consider its provenance dubious, and the manuscript spurious, counterfeit, or the ravings of an ancient lunatic.

    We make omelettes, not Eggs McMuffin™.
    The Thin Blue Line™ we’ll perforce toughen:
    Presume citizens knaves,
    Or subjects, or slaves.
    Police safety is just the MacGuffin!

    FN 1: Whatever that is.

    FN 2: That too.

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