Ignorance of the Law is Bliss -- For Prosecutors

[Update, Tuesday, August 3, 8:55 PM]: It is official, now. In Catoosa County, it is not a crime to assault someone (using racial slurs) even while being videotaped, but one can be charged for crimes that never happened. WRCB-TV reports that the assault charges that Eric Echols filed against Sandra Lamb have been dismissed, although no reason has been given for the dismissal.

However, felony charges against Mr. Echols remain, even though the state has no witnesses and all of its "evidence" has been publicly shown to be false. All of this is what the ancients once called "corruption." [End Update]

In his crime column this week for Reason, Radley Balko (who featured the Tonya Craft case on his blog) writes that there are two standards for Americans. Ordinary people who generally are not trained in law and who don't have the time to read every law book and every statute are expected to know everything about the law, and if they are ignorant of it, as judges have declared, that is "no excuse."

However, there are three groups of people who do have to worry about being sanctioned for not knowing the laws or for misinterpreting them: the people who have been trained in law and who work as police officers, prosecutors, and judges. That is right; the people who enforce and administer the law in the USA are permitted to be ignorant of those very laws, and even if their ignorance is tragic, they are fully and absolutely protected from bearing any consequences whatsoever.

Do you believe I am kidding? Balko writes:

As citizens, we're expected to know and obey all of these laws, in addition to state and local statutes and the relevant court opinions that interpret the breadth and depth of all of those laws.

But what happens when law enforcement officials don't know the law? What happens when they illegally detain, arrest, and charge you even though you've done nothing wrong? Unlike you, their ignorance doesn't result in arrest or jail. And unless the violation is pretty egregious, they're unlikely to be punished for it.

Consider the case of Brian Kelly. On May 24, 2007, Kelly was riding with a friend in the town of Carlisle, Pennsylvania. Officer David Rogers of the Carlisle Police Department pulled Kelly's friend over for speeding. Rogers told the two that the traffic stop was being recorded with a microphone attached to his uniform. Kelly, who had a video camera with him, began recording the stop as well. When Rogers returned from writing a ticket, he noticed Kelly's camera. Rogers demanded Kelly turn the camera off and hand it over to him. Kelly complied.

Rogers then returned to his car and called John Birbeck, an assistant district attorney in Cumberland County. Rogers asked Birbeck if Kelly's recording violated Pennsylvania's wiretapping law. Birbeck incorrectly told him it did. Rogers then called in back-up officers and placed Kelly under arrest. During the arrest, Rogers "bumped" (the term Kelly used in his lawsuit) Kelly, causing a staple from a rugby injury to rupture, causing Kelly's leg to bleed. Kelly spent the night in jail. He was eventually charged with a felony punishable by up to seven years in prison. Cumberland County District Attorney David Freed would later tell the Patriot-News that while he sympathized with Kelly not being aware that what he did was illegal, and that he might (graciously!) allow Kelly to plead to a misdemeanor, "Obviously, ignorance of the law is no defense."

Here's the problem: Freed was the one who was ignorant of the law. So was Birbeck. And so was Rogers. The Pennsylvania Supreme Court ruled in 1989 that recording on-duty public officials is not a violation of the state's wiretapping law because public officials have no legitimate expectation of privacy while they're on the job. The order for Kelly to stop videotaping was illegal. So was Kelly's arrest and his incarceration. Freed eventually dropped all charges.

Kelly filed a civil rights lawsuit against Rogers and the town of Carlisle. In May of last year, Federal District Court Judge Yvette Kane dismissed Kelly's suit. The reason? As a police officer, Rogers is protected by the doctrine of qualified immunity. In order to even get his case in front of a jury, Kelly has to show that Rogers (a) violated Kelly's civil rights, and (b) the rights Rogers violated have been clearly established. Even if Kelly can meet those two burdens, he must also show that Roger's actions in violating Kelly's rights were unreasonable.

So it isn't enough that the police are wrong about the law. They have to be very obviously wrong for you to collect any damages from a wrongful arrest.

Kane found that because Rogers sought advice from the local prosecutor's office it was reasonable for him to act on that advice, even if the advice happened to be wrong on the law. Moreover, Kane found that because the federal appeals courts have yet to find a specific right to make audio recordings of police, that right is not yet clearly established. Kelly is appealing.

Suing Birbeck isn't likely an option for Kelly, either. Prosecutors enjoy an even stronger protection called absolute immunity. Under absolute immunity, there is virtually nothing a prosecutor can do in the course of his job that would subject him to a lawsuit.

The contradiction couldn't be starker. Kelly, a citizen who neither works in law enforcement nor has been to law school, was arrested, jailed, and charged with a felony for not knowing that an antiquated law pertaining to wiretapping prevented him from using a wireless video camera to record a traffic stop that the police officer himself was recording. Even if Kelly had broken the law, at worst he made a recording of Rogers without Rogers' consent in addition to the recording Rogers was already making. Rogers wasn't harmed at all. And for that, Kelly could have gone to prison for seven years.

On the other hand, Freed, Birbeck and Rogers are all paid by taxpayers to know and enforce the law. Freed and Birbeck presumably went to law school, and presumably passed the Pennsylvania bar exam. Knowing the state's criminal code and the court decisions that affect it is a fairly integral part of their jobs. The harm caused by their ignorance of the law is far from insignificant: A man was wrongly arrested, detained, and jailed. His First Amendment rights were violated. And he was injured in the course of his arrest. Yet they won't be going to jail. In fact, they're unlikely to be sanctioned or punished at all.

It gets worse. Police around the country regularly arrest people who legally take videos of arrests or take pictures in places like the D.C. Metro stations, even though the courts have ruled those arrests are illegal.

I believe that we have a legal crisis in this country, and believe that our situation nearly is hopeless. The reason goes back to Murray Rothbard's contention that in monopoly situations, ultimately the employees themselves capture the organizations. (This is different than "Regulatory Capture Theory" in which private organizations that are regulated by government agencies ultimately are supposed to "capture" the regulatory apparatus.)

For example, the most powerful force within public education is the National Education Association, which is the biggest teachers' union. I would hold that in the "justice" system of this country, the employees -- and especially the "civil servants" and appointees, such as the associate district attorneys (ADAs) like "Alberto-Facebook" Arnt and "The Man" Gregor tend to run the show, and they ultimately are able to manipulate the situation, with the help of judges and politicians, to gain immunity, which ultimately corrupts the system.

People who do not have to be accountable for their actions are not going to do the right thing over time. Even people who claim to be guided by a moral -- or religious -- compass ultimately will pull stunts in order to win cases.

Take Tim "Dirty" Deal, for example. I recently saw his Facebook page and on it he claims to be "pro-life" and "Christian," yet he was willing to fabricate a document in order to help prosecutors suborn perjury from Sandra Lamb, Suzi Thorne, and others. Why did he do that? He wanted to win, and he knew that he would face no consequences from the law because politicians, prosecutors, and judges are protecting him.

Every day, prosecutors lie in court and their bring witnesses they know are lying. Judges sign off on the whole thing, and the only people who are injured are the innocent.

A "justice" system that does this is the same kind of "justice" system that requires those with the least expertise of the law to be most knowledgeable of it, while those who are trained in law and who work for the government are not required to know anything at all. That is a prescription for tyranny, and while I can do nothing about it, I will continue to speak out until the authorities silence me.