Archive for December, 2014

SCOTUS makes a mistake anybody would have made. So it’s okay, right?

Tuesday, December 16th, 2014

The Fourth Amendment established one of our most important protections against government power: if the police search you or your stuff for evidence, their search must be ‘reasonable’; and if they do get a warrant then it has to be specific, and they’ll need probable cause. In writing, it couldn’t be more straightforward.

In practice, however, its meaning is anything but. Over the years, the courts have dramatically muddied the meaning of the Fourth Amendment. Not as badly as the Fifth, perhaps, but badly enough to severely erode the Fourth’s protections against unreasonable searches and seizures. The courts certainly weren’t trying to undermine the Amendment (well, not most of the time, anyway). It’s been a long series of discrete errors, gradually chipping away at what counts as an “unreasonable” search, and what can be done about it. And so legal types have long complained that the courts have been “eroding” our Fourth Amendment protections.

Sometimes this happens because the legally correct outcome sometimes seems so… wrong. What judge wants to let some vile nasty inhuman threat to society go free, on a mere “technicality?” Very often, this sense of “doing the right thing” in fact leads judges to make errors in law — waving away the protections this one bad guy had, and thereby creating a precedent that erases everyone else’s. It’s the “hard cases make bad law” principle, and it’s very real.

Sometimes this erosion happens because the courts simply don’t understand the law they themselves have created! Even the Supreme Court does this. It happens more often than you might think.

And yesterday, the Supreme court did it again.

-=-=-=-=-

The case is Heien v. North Carolina, and in a nutshell the Supremes said this: If a police officer mistakenly thinks something you’re doing is against the law, and if it’s a mistake any reasonable person would have made, then it’s okay if he stops you to investigate. The Court broadened the definition of “reasonable suspicion” so that now an officer can be wrong about what your were doing, and whether it was even illegal in the first place, and he’ll still be allowed to stop and frisk you. Based on the justices’ own understanding of the law, it’s okay, they say.

Actually, it’s not okay. The Supremes themselves were mistaken about the law.

Was it a “reasonable” mistake?

-=-=-=-=-

It looks like, at the heart of this mistake, we’ll find the “Exclusionary Rule.” This is law invented by the courts, specifically for the purpose of enforcing the Fourth Amendment. If you’re charged with a crime, and the police have evidence they unlawfully seized from you, your only protection is the Exclusionary Rule: if the police got evidence by violating your rights, then that evidence cannot be used against you at trial. The officers are not themselves penalized in any way; all we do is take away the evidence that they shouldn’t have had in the first place.

This is a very civilized rule, if you think about it. In any situation, there’s a line the police cannot cross. Every situation is different, and the rules aren’t always clear. If the police themselves might be punished for inadvertently crossing that line, then they’re going to avoid going anywhere near it. Society would lose a lot of evidence that the police could have lawfully obtained. Guilty people whom society really wants to punish will get away with it. That’s bad. A rule meant to deter police conduct is not what we want. Instead, however, the Exclusionary Rule lets police go right up to the line, without fear of repercussion if they mistakenly cross it. All the rule does is take away the evidence they get from crossing the line if that happens. It merely excludes what they shouldn’t have had anyway. The rule has zero deterrent effect on police personally, and only serves as an incentive to collect evidence lawfully if they want to ensure its use at trial. It’s really quite elegant: the lawful evidence is maximized, the unlawful evidence is eliminated. What more could society want?

The problem comes when judges are mistaken about the law. When they say the Exclusionary Rule is all about deterrence. Which is precisely what the Rule isn’t about. They get the whole purpose of the Rule wrong, and then they base the rest of their reasoning off of that wrong premise. And they reach a result that’s not only wrong, but inconsistent, confusing, overcomplicated, and unjust. There’s some satisfaction in the guilty being punished, but in so doing they’ve made things worse for everyone else.

So say the police got a bad warrant, but they didn’t know it was bad. Acting in good faith, they seize evidence the Fourth Amendment absolutely forbids them from having. But they didn’t know it was bad. They sincerely and reasonably thought it was good. There’s no way to deter people against being reasonably mistaken. You just can’t. So if you think the Exclusionary Rule is about deterrence, you’ll have to conclude that it’s literally pointless if the police were acting in good faith. And if you’re a court, you carve out an exception to the Fourth Amendment — a “Good Faith” exception –and our protections are eroded just a little bit more.

It happens all the time, and it happened yesterday.

-=-=-=-=-

As one might expect when a court is arguing from a mistaken premise, the Court’s justification was convoluted and strange. In an area where one would expect the law to be fairly current and on point, the Supreme Court had to reach way back to its earliest cases, especially about international-border customs seizures as opposed to Fourth Amendment seizures, to find something to justify itself. You can read the case itself here, and Scotusblog has a typically excellent analysis here.

The legal issue is whether “reasonable suspicion” is still “reasonable” if the police officer is wrong on the law. “Reasonable suspicion” itself is about the police officer’s assessment of the facts on the ground, whether he’s seeing someone casing a bank to rob it, or someone who’s just pacing back and forth in front of it lost in thought. Police officers aren’t mind readers, and so their suspicion can be reasonable even if their conclusion turns out to be wrong. The whole point of “reasonable suspicion” is to allow the police to investigate whether their suspicion is correct.

It’s never been about whether the officer’s understanding of the law was correct. We want to let the officer stop you to investigate whether his assessment of the facts was correct. An officer doesn’t need to stop you to investigate whether his understanding of the law is correct. It doesn’t even make sense to say reasonable suspicion is reasonable if the officer was wrong on the law.

The Court’s ruling essentially broadens the definition of reasonable suspicion so that an officer can be wrong about what your were doing, and whether it was even illegal in the first place, and he’s still allowed to stop and frisk you.

Though it didn’t say so explicitly, the Court was essentially making the same “good faith” mistake all over again. A police officer is mistaken on the law. Not because he didn’t study it carefully, or because he was sloppy — no, it’s an error that any reasonable person would have made. Anyone would have thought you were breaking the law, despite the fact that what you were doing was technically legal. The officer’s mistaken belief wasn’t his fault. It was objectively reasonable. And there’s no way you can deter people from being reasonably mistaken. You just can’t. And so if the Exclusionary Rule is about deterring police conduct, it’s simply pointless to apply it here. So we have to carve out an exception — a “Reasonably Mistaken” exception — and our protections are eroded just a little bit more.

It would be a mistake to argue that the Court was wrong because its reasoning was convoluted and it relied on irrelevant case law, however. That’s not the problem with the decision. It’s only an outcome, a symptom, of the underlying error. Once again, they presumed that the Exclusionary Rule is something it categorically is not. That’s their error. And our cherished Fourth Amendment probably means just a little bit less now, as a result.

-=-=-=-=-

So they were mistaken on the law. But it’s a mistake lots of judges, even those on the Supreme Court, have made before. It’s an “objectively reasonable” mistake.

But that doesn’t make it okay.

Training and Experience

Thursday, December 4th, 2014

This has been another one of those years with a heightened awareness of police violence against unarmed black men. Awareness is a good thing. Understanding, however, is better. You can’t solve a problem until you know what the problem is.

The problem isn’t really racism, though. The problem is fear. These shootings don’t happen because the victim was black. These shootings happen because the officer was afraid.

The overwhelming majority of police officers, of course, will go their entire careers without ever pointing their weapon at another human being, much less shooting at one. Of the few officers who do pull the trigger, the majority are justified — they’re using deadly force to protect themselves and the public from deadly peril. That’s the norm. But some police shootings shouldn’t have happened — the victim wasn’t armed, and wasn’t posing a serious threat to anyone.

When those shootings happen, it’s because the officer was afraid. He saw danger where it didn’t exist. Maybe he panicked when the victim reached for his wallet. Maybe he was scared in a dark staircase and was suddenly startled by someone appearing out of nowhere. Maybe he wasn’t scared witless, but simply rationally assessed an indignant shouting person as being a vicious attacker. Either way, he pulled that trigger out of fear.

That fear is real. It doesn’t justify anything, however. Fear is the problem that needs to be solved. So where does it come from, and what can be done about it?

-=-=-=-=-

Police often use the phrase “training and experience” in court, to explain their judgment calls. “I suspected that the defendant was getting ready to rob that store, based on my training and experience.” “I determined that the substance he was selling was probably cocaine, based on my training and experience.” It’s a catchall phrase, but not a meaningless one. Training and experience, after all, are how any of us know anything. We know that 2+2=4 because we were trained in elementary school to do addition. We know that the sun rises every morning and sets every evening because we’ve experienced that every day of our lives.

Experience is stronger than training. I can lecture you until I’m blue in the face that the sky is red, but that’s not going to change what you already know from your experience, that the sky is blue.

This fear that police officers have comes from experience. It is ingrained in an officer’s brain from his lifetime of experience. His perception is that this kind of person, looking like that, behaving like that, in this kind of a situation, is probably a threat. Right or wrong, justified or not, that is what he’s learned. It’s what he instinctively knows. You can give sensitivity lectures until you’re blue in the face, but the only thing that’s going to change that perception is real-life experiences demonstrating that he doesn’t need to be afraid.

That’s important, because this fear is not something that can be intellectually or rationally changed. It’s purely unconscious. It’s coming from the unthinking part of the brain, before the thinking part ever gets involved. The emotional parts and ingrained memories of past experiences are saying “this is a threat,” and are pumping fight-or-flight signals all over the nervous system without any conscious control.

On top of that, the brain is unconsciously creating a perception based, not on what’s really going on, but on what it expects is probably going on, based solely on what that brain has experienced in the past. We don’t have much room for attention at any one time — our brains can only keep track of a handful of things at once, and the area of our visual focus is (astonishingly) no bigger than your thumbnail held out at arm’s length. Our brains create the illusion of a continuous experience, and of seeing all the things we think we see. And that’s what it is: an illusion. To do this, our brains fill in all the blanks with what’s probably there, based on the experiences we’ve stored. This happens without our awareness, without our control, and it happens constantly. We perceive what our experience expects to see.

And in the case of unjustified shootings, the police officer very often saw a threat where none existed because in his personal experience, that was a threatening situation.

It’s worsened when an officer’s experience is extremely limited. And it very often is. But it’s all he’s got to go on. Someone raised in a quiet suburb, who whose only experience with certain people has been of a violent or threatening nature, is going to know, based on his training and experience, that people like that are dangerous.

This fear can be racial — police officers are generally more likely to use violence against blacks and hispanics than against whites or asians. Even police officers who themselves are black or hispanic. But that doesn’t necessarily make it racist. And in fact race is less important than socioeconomic status — police are more likely to shoot at low-income, low-prestige individuals regardless of race. But that, too, doesn’t necessarily make it classist. It’s not blind racism or classism, but rather a prejudice based on limited life experiences. An officer may have a real prejudice that black people (say) are more likely to be dangerous than white people, and that poor people are more likely to be dangerous than middle-class or rich people.

We can spout statistics until we’re blue in the face again, that these prejudices do not in any way reflect reality, but that’s like telling him the sky is red. They reflect the officer’s reality, the only one he knows.

On top of that is the “us vs. them” mentality that many police officers can’t help but develop over time. Nobody’s on their side — the politicians whose rules the police are enforcing are the first to throw them under the bus if there’s ever any outcry. The citizens whose lives they’re protecting, for whom they’re risking their lives, call them names and march in outrage. The communities they police scream bloody murder when they don’t like what an officer did, but don’t utter a peep about the people in their communities who are killing children and driving businesses away. Nobody organizes marches against the criminals, against the real bad guys. The only people on their side are fellow cops. Not even prosecutors are really on their side. It doesn’t take long for an officer’s training and experience to prove to him that the citizens he serves are actually his opposition. And when any of us look at people as outsiders, we’re even less likely to notice individual differences. An officer who no longer sees himself as “one of us,” but rather sees any of us as “one of them,” is far more likely to rely on internal prejudice when assessing an individual. This is what we all do, by the way — it’s yet another unconscious function of our brains over which he have little or no control. Members of an “other” group just get lumped together into a stereotype, without much attention to individual differences.

-=-=-=-=-

Stereotype is the right word here, but not in the way it’s normally used. It means “the things our brains expect to see.” Most of the time, stereotypes are great — they’re a real survival skill without which we couldn’t function in a complex environment. “That car was coming right at me last time I saw it. It’s in my blind spot now, but it’s probably still coming this way. I’d better get out of its way.” In a panic situation, when there’s no time to think and assess, they’re a real time saver, as the T-shirt says. Your brain falls back on what it already knows, to determine what is probably happening, and what is probably the best thing to do about it. Most of the time, it’s right. Which is why you’re probably still alive to read this.

But sometimes instinctive reactions are tragically wrong. An inexperienced motorcyclist, for example, who suddenly needs to veer left, will do the obvious thing and steer the handlebars to the left. Which is unfortunately the opposite of what he needs to do, and so he goes down and slides into that oncoming truck. A more experienced biker, however, will have trained herself to overcome that instinct and do the counterintuitive thing — she pushes the left handlebar away from her, and veers to the left as she wanted.

Similarly, a police officer whose experience with certain people is limited can easily misinterpret a harmless situation as a dangerous one. Like the motorcyclist, the only cure is more experience.

Training helps a little bit, but it only goes so far. You can lecture to the inexperienced motorcyclist until your face assumes a certain hue, but he’s not going to believe it until he tries it. And it will take a lot of practice to make the counterintuitive decision the ingrained instinct. Similarly, you can give all the cultural sensitivity training you want, but for it to have any real effect the officer is going to have to see for himself that most people who look like that, talk like that, dress like that, live in that neighborhood, etc… most of them are okay. And he must gain enough experience to be able tell those few who are threats from the majority who aren’t.

That doesn’t come from a lecture. That comes from spending time in the community and getting to know the people. That comes with walking the beat with a more experienced cop who knows the people, who can share his knowledge and insights. That comes from giving police officers experience, not just of the criminal element, but of the community as a whole.

That’s hard to do. And it’s getting harder in recent years. Police are less and less likely to come from the communities they police, and cultural dissonance and misunderstanding are ever more likely. Community outrage against police is getting louder, and the “us vs. them” mentality is only getting stronger. Policing policies are less about understanding the community and making judgment calls, and more about arresting every infraction. Police are using more and more overwhelming force to ensure compliance with their commands and improve their chances of getting home safely. Cultural awareness has never been greater, and yet police officers have less opportunity to experience it firsthand than ever.

Giving officers the necessary training and experience is harder than ever. But it’s the only real solution.