For those who practice law, human interaction too often falls into our skewed paradigm of comply now, grieve later. We promote that notion because that’s how the law works. What we too often fail to grasp is that it’s not a feature, but a bug, and we’re just too indoctrinated into what’s good for us that we fail to see how bad a solution it is for real people.
From the St. Louis Post-Dispatch, a ruling about our favorite suburb of St. Louis:
Police may not force peaceful, law-abiding protesters to keep moving, a federal judge said Monday, because it violates their constitutional rights.
U.S. District Judge Catherine Perry issued a preliminary injunction ordering police to stop using a crowd-control tactic that was intended to enforce curfew during the most volatile nights of the Ferguson protests.
Ain’t that great? Remember when the nation’s eyes were on Ferguson, galvanized by the killing of Michael Brown and images of militarized police running roughshod over a handful of our most beloved constitutional amendments? Remember how the cops shut it down by herding reporters into tiny First Amendment pens, arresting protesters who didn’t keep on trucking, firing into crowds that just didn’t do as they were told?
Well, the cops were wrong. And here we are, a couple of months later, with a ruling from a federal judge validating the protesters and enjoining the cops. Maybe the judge could have nunc pro tunc’d the ruling. Sheesh.
In anticipation of some police chief somewhere speaking to a phalanx of microphones, “We are deeply sorry for depriving the protesters and reporters of their constitutional rights. My bad. It will never happen again. Bwahahahahaha.”
You see, the time when this ruling was needed was the moment the police first violated the rights of protesters. Two months later may be lightning fast in legal-speed, but worthless to the protesters that night in Ferguson. The moment is over. It’s gone. The cops won, regardless of the ruling. They shut down the protesters. They violated their constitutional rights. And no court ruling after the fact will alter what happened at the crucial moment in history.
That’s the macrocosmic failing of law to address the needs of society. It was put to the test and failed miserably. On the microcosmic end, it’s somewhat different. Via Raw Story:
A Pennsylvania family has filed a federal lawsuit alleging three Collingdale police officers entered their home without permission to confiscate a cell phone being used to record the officer’s actions in front of their home.
Kia Gaymon, 38, and her husband Michael Gaymon, 35, state in the suit that one officer, identified as Officer Carl White, burst into the home without a warrant and arrested her after threatening to use a taser on her, according to NBC10.
Collingdale Hero Cop Carl White (not necessarily a reflection of ethnicity) saved the neighborhood from a potentially poor parking job. Hooray! It came at a high price.
Sure, charges were tossed and they will likely recover for the violation, though it’s hard to believe that Hero Cop Carl White wasn’t absolutely clear that what he was doing was unlawful. So, at least after the fact, there will be compensatory relief. But the damage was done with no legal process to prevent the flagrantly unlawful police conduct of this hero cop as it happened.
Before the righteously indignant explain to dopes like me how the legal system works, how it takes time, how it may not be perfect but it’s the best there is, consider that if the police in Ferguson, or Hero Cop Carl White in Collingdale, sought a warrant, they would have had one in a flash. Five minutes? Ten? An hour, at worst? Not two months later. Not after the damage was done.
And yet, would that prevent the indignity, the harm? Consider what happened to David Hooks, via Radley Balko:
According to WMAZ TV 13, Laurens County sheriff’s deputies with the drug task force and special response team (SWAT team) conducted a no-knock search on Hooks’ home in East Dublin on the evening of the 24th. When the raiders burst through the back door of the residence, they encountered Hooks’ carrying a shotgun. Multiple deputies opened fire, shooting [and] killing Hooks.
No drugs, despite a 44 hour search. The warrant (which was knock and announce, though the cops didn’t) was as ugly as humanly possible. But some judge signed off on it, because the cops asked and who is a judge to say no? Almost every piece of the killing of David Hooks, a legitimate businessman who had been burglarized earlier and wanted only to defend the lives of his family, was garbage. But so what? He’s dead.
What order can a judge issue after the fact that will bring David Hooks back to life? Yet another bit of realism that can’t be nunc pro tunc’d, no matter how respected the judge or her fiat.
Yet, any lawyer will explain that the proper handling of such interactions is to comply now, grieve later. And in the case of David Hooks’ family, there is grieving, though of a different sort. But the law offers little comfort. There will likely be a significant recovery for Hooks’ death, though it won’t be paid by any cop who pulled a trigger, and it won’t put a warm body back in his wife’s bed.
The efficacy of the law to fix what went wrong is extremely limited, and as these instances reflect, worthless when it comes to timeliness. The law is for janitors to clean up the mess. Don’t expect any judge to be on call to stop the police, even though they are judge-on-the-spot when the cops need a piece of paper.
But when you get the opportunity to mop up the mess left behind, do you think of the rights of Ferguson protesters that will be lost to history because of the restraint shown the police for their very difficult job? There is nothing that happened in the three examples that hasn’t happened, in some variation, before, and yet wasn’t deterred. Judges pretend they are sending a message. These instances are the message in response: the police don’t really give a damn what you have to say, and they’ve going to do as they please because the law is impotent to stop them.
I would bet my last dollar our Founding Fathers never thought once about “comply now and grieve later” over their Constitutional rights. How cops, DA’s, and courts have twisted what was once inalienable, should not be our practice, present or future. Will this practice ever stop?
That would leave you destitute and wrong. This is how law has always worked. Back then, however, the time frame was far shorter, and the local judge was never too far away to address whatever problem demanded his attention. Things are, shall we say, more complicated today.
It’s the diffusion of responsibility. As you noted, the law has delays built in, and has had so for 6000+ years, so I think it’s safe to say this part of the equation will remain the same for the foreseeable future. But in the case of Hook’s death, who is responsible? The officers? Well, yes; but they were acting upon a lawful warrant signed by a judge. The judge? But he was signing a document that was attested to be factual by the officers. The local police department, for how it trains its officers? So many hands were responsible for this tragedy; and so, no one is guilty.
Bruce Coulson: I do not agree. The officers did NOT get a no-knock warrant and therefore violated its terms by conducting a no-knock raid. The application for the warrant was based on an unreliable informant. The police never should have requested the warrant to begin with, but done their due diligence, and the judge should have denied it.