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Wednesday, May 18, 2005

The persecution of Lee and Kan, Part IV

Links to Parts I, II and III.

Do Miranda violations give a suspect a right to fight with the police?

Waite’s prosecution of officers Lee and Kan reduces to the outrageous contention that if a defendant’s lawyers can convince the courts that the arresting officers broke Miranda rules in any way, then not only is evidence to be excluded, but the defendant gains a right to resist arrest--to fight the arresting officers tooth and nail--and if any force is used to subdue that resistance, to have that force charged against the police as felony assault under color of authority. But only if you are black.

This is the real insanity of the prosecution. Suppose that the arrest itself could somehow be shown to be wrongful. Waite’s whole premise is that this would justify Hopkins’ fighting with the police, which is a rejection of the very concept of rule of law. Police make flawed arrests all the time. Remedy must come through the courts. That is what courts are for: to sort out which of the accused are actually guilty. Waite is saying that it is okay for Hopkins to act as a vigilante, and enforce his own judgments outside of the legal process. He is rejecting the rule of law.

The only time an arrestee can be legally allowed to fight back is if he is trying to surrender peacefully and officers are beating him unnecessarily. Hopkins, in contrast, adopted a fighting stance when pepper sprayed and “growled” at the officers. They did not use more force than necessary, but graduated their level of force only as necessary to induce Hopkins to stop fighting. The idea that any flaw in the arrest process means that people no longer have to submit to the legal process but can without legal consequence go to war against the police is a complete rejection of the system of law that Waite is sworn to uphold.

A “regular processes” of legal authority
Is there any legal basis for Waite’s ambitious new legal theory, that if there is any flaw in a suspect’s arrest, then the suspect is allowed to fight with the police, and the police are criminally liable for any harms that ensue? California’s primary “color of authority” statute looks on the surface like it might actually leave a tiny bit of room for this interpretation. Code section 146, reads:
Every public officer, or person pretending to be a public officer, who, under the pretense or color of any process or other legal authority, does any of the following, without a regular process or other lawful authority, is guilty of a misdemeanor:
(a) Arrests any person or detains that person against his or her will.
(b) Seizes or levies upon any property.
(c) Dispossesses any one of any lands or tenements.
In the defense’s favor, “a regular process” of legal authority would seem to be quite open ended, in line with the California’s “obstruction” statute. So long as police are engaged in some police duty, like investigating citizen complaints, obstruction is a crime. Similarly, any normal police duty would seem by definition to fall under “a regular process [of] legal authority.” But what if department policies are designed, as Palo Alto’s are, to give extra wide berth to Miranda rules, so as to insure that cases are not thrown out on technicalities? Would any failure to adhere to the letter of such stringent department policies place an officer’s actions outside of the “regular process” of legal authority, leaving the officer properly subject to prosecution under 146?

This seems to be Waite’s gambit, but it cannot hold up. Discretion and mistakes are undeniably part of the “regular process” of police investigations. There must also be room in the “regular process” for what the Supreme Court recognizes as an officer’s constitutional right to ask questions of a non-consensual contact. (See Mendenhall, discussed in Part III). Otherwise the “regular process” is unconstitutional. True, the constitutional rights of the Police don’t play out quite the same as other people’s rights. The implied authority of police officers means that their questioning can be expected turn into an implied detention more readily than questioning by private citizens does. As a result, the right of the police to question people without their consent conflicts with competing rights sooner than other people’s right to question each other non-consensually (Woessner, also discussed in Part III). But until competing rights take over, officers' rights must be recognized by the “regular process.”

Strict liability
A second untenable pillar of Waite’s gambit is his assertion of what amounts to “strict liability” for all harms that follow from an alleged Miranda violation, whether or not there is any criminal intent on the part of the violating officer. Indeed, he is effectively invoking the rare strain of strict liability that applies in “felony murder” cases. With “felony murder,” someone who is found guilty of committing a violent felony like armed robbery is automatically considered guilty of murder if anyone dies during the robbery, even if the intention was for no one to get hurt. This makes sense because a robber knows that robbery creates risk of violence, and society’s interest in stopping criminal violence warrants maintaining this accountability.

There is a superficial parallel here to officer Lee’s actions. If we assume that citizen reports of Mr. Hopkins engaging in what could be considered “casing behavior” did not create reasonable suspicion from the outset (a big ‘if’), then officer Lee’s decision to re-approach a non-consenting Mr. Hopkins would be a violation of department policy, with possibly foreseeable consequences. But there are two obvious flaws in the analogy to felony-murder. First, violating department policy is not a crime, so it cannot create the culpable mental state necessary to charge criminal responsibility for what may ensue. Second, the foreseeable consequence of violating Miranda driven policies is not that violence may ensue. It is that a subsequent arrest might be ruled inadmissible in court and a criminal might get off on a technicality. THAT is why these policies exist.

Hopkins’ guilt
The clearest view comes from noting how officer Lee’s failure to stay ten miles away from a Miranda violation would have affected the outcome of Hopkin’s trial, had his arrest on “obstructing” and “resisting” charges been prosecuted. It would have had no effect at all. Any reasonable jury would have found Hopkins guilty, despite the fact that officer Lee might have asked him for his driver’s license in violation of department policy. It is not clear whether Hopkins’ arrest on obstruction charges relied on the fact that he lied about not having a driver’s license, but suppose it did. The department policy that urges officers in that situation to “stay back” goes far beyond Miranda. Asking Hopkins if he had a driver’s license did not constitute “seizure,” so it did not require reasonable suspicion. That means Hopkins’ lying response would be perfectly admissible in court, even if asking the question did violate department policy. Had Hopkins been tried, he should certainly have been found guilty of “obstructing,” and then of “resisting” arrest on that obstruction charge.

If Hopkins was guilty of a crime, how could it be wrong for officers Kan and Lee to have arrested him for it? They can’t be found guilty of wrongly arresting someone who, via a guilty conviction, is proved to have been RIGHTLY arrested. Here is where Palo Alto’s failure to stand behind its officers really hurts. Hopkins WOULD have been found guilty, in which case the very idea of charging officers Lee and Kan for arresting him would be unthinkable.

The same unthinkableness should also apply in the case where an officer actually does violate Miranda. An arrestee still has an obligation of citizenship not to violently resist the police, but to instead let the issue be settled in court. Technically, police mistakes and police discretion are part of the “regular process” of police work. Physically resisting that process is illegal under code section 148. Less technically, we all have a fundamental obligation to submit to the rule of law, and settle conflicts in court rather than through personal violence. Violent resistance to the police must always in-itself be a crime, so long as the police are not using excessive force to try to affect an arrest, whether that arrest will hold up in court or not. In the Hopkins case, no one suggests that Kan and Lee used more force than was necessary to subdue Hopkins. To hold the officers responsible instead of Hopkins is to side against the rule of law.

Appeal is de novo
Peter Waite is a moral pervert for the ages, a Ward Churchill who has managed to get his hands on prosecutorial power. Has a public official ever before perpetrated a racist jeremiad that so thoroughly perverts so many basic legal principles? Yet Waite only needs to get a few more of California’s blue-state bigots on the jury next time and Lee and Kan may even be convicted.

If they are, there will be a chance to appeal the issues of this case to higher courts. In such an appeal everything will be reviewed anew, the facts as well as the law. Most criminal cases are only reviewable for procedural errors, but because of the importance of maintaining consistent standards for warrantless investigations, the Supreme Court has made an exception in these cases. As the Supreme Court asserted in United States v. Ornelas, 517 U.S. 690, 691 (1996):
The ultimate questions of reasonable suspicion to stop and probable cause to make a warrantless search should be reviewed de novo. The principal components of either inquiry are (1) a determination of the historical facts leading up to the stop or search, and (2) a decision on the mixed question of law and fact whether the historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.
Instead of manipulating a panel of naïve jurors with his racial demagoguery, Waite will have to try to demagogue a panel of judges. Officers Kan and Lee should not worry. The further this case must be appealed to win vindication, the more fellow officers will win protection through their ordeal.

End Part IV. Links to Parts I, II and III.

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