Emasculating Juries: Another Form Of Tyranny

I used to think we got the law enforcement we deserve. But then I realized that we the people have very little to say in the matter. The truth is, we get the law enforcement federal judges think we deserve. Here's the real question: What did we do to deserve these judges?

A revolution has taken place in our courts during the past couple of decades. It has been a slow and insidious upheavel, however. It was unaccompanied by bloodshed or popular manifestoes. And the leaders of this revolution did not take to the streets. They worked quietly, behind the scenes, wearing black robes and, like a revolutionary vanguard, swore lifelong allegiance to a society only the elite can join. These revolutionaries are federal judges. They are shredding the Constitution to pieces and delivering up a police state. We like sheep are expected simply to accept this by bending, spreading and otherwise obeying.

The crown jewel of the American court system was never supposed to be the judiciary, a cadre of lifetime appointees, guaranteed a decent living for the rest of their lives so long as they manage not to commit any serious crimes. We asserted in the Declaration of Independence that we revolted against Britain to secure, among other things, the right to trial by jury. How did it happen that two centuries after this rebellion we have given the courtrooms of this nation back to an elite as unaccountable to the people as King George's ministers or a Parliament living worlds removed from the lives we lead?

 The Fourth Amendment to the United States Constitution guarantees to the people the right to be free from unreasonable searches and seizures. Yet the judiciary has riddled this guarantee with so many exceptions we are increasingly the playthings of police officers. When a citizen tries to bring police practices to a jury, to let a jury decide what is and is not reasonable, the quintessential function of jurors in a republic, an activist judiciary serves as gatekeeper, swatting one case after another out of court because, in the opinion of these lifetime aristocrats, they will make the threshold decisions about what a jury can hear. Only the feces in my chicken coop smells worse than this rot.

Consider the class action suit pending in New York, brought by the Center for Constitutional Rights, and reported on by Bob Herbert in yesterday's New York Times. New York police officers are engaging in a widespread "stop and frisk" policy. If they spot a young man, typically a black or Hispanic young man, with a suspicious bulge in their clothing, the police stop the young man, frisk him, sometimes by reguiring that he lay face down on the pavement or stand spread eagle against a wall, while officers pat down the exterior of his clothing. In the vast majority of cases, officers find no contraband -- no drugs, no guns, no sign of anything other than being the wrong skin color in a public place. Isn't this unreasonable?

Not really, according to the law as decided by the federal courts. An officer is justified in stopping a person and patting the person down if the officer has an articulable suspicion that the person is engaged, or is about to be engaged, in criminal conduct. In New York, that seems to mean that if police interpret a buldge in clothing as possession of a gun, they can stop a person to determine whether they are, in fact, carrying a gun, and if so, whether they lawfully do so. If the officer is wrong, the person is released. If searching for the gun detects an illegal weapon or drugs, an arrest follows.

What remedies does the innocent person stopped, searched and humiliated in a public place have?

If he files a federal law suit against the police officer alleging a violation of his rights, odds are the case will never see the light of a courtroom. A judge will most likely grant the officer qualified immunity from suit so long as the officer swears an affidavit that he saw a suspicious bulge. The court will hold this to be a reasonable sort of mistake for an officer to make, even if the officer and his colleagues make the same mistake over and over again. Even if this mistake puts young men of color face down on the city's grimy streets. That's because federal judges think that is reasonable. Screw the people who are getting screwed. 

My Constitution says nothing of qualified immunity. Congress did not pass a statute creating this pernicious doctrine, a doctrine that keeps cases from a jury. The doctrine sprung fully formed from an activist judiciary that made decisions about what is and is not reasonable, decisions that juries, and not judges, should make. We the people did not revolt to exchange a geographically distant governing elite for a socio-economically distant elite, living a lifetime free from the stresses and strains that define the lives of most Americans. I did not sign on to a plantation governed by men and women wearing black robes.

Even before qualified immunity metastatized and swallowed the people's right to sue police officers, I saw signs of a judiciary hostile to claims against police officers. I recall a case in the mid 1990s that I won for a New Haven woman. The jury concluded that a police officer had illegally searched her car. When I asked for a jury instruction to permit the jury to decide whether to award punitive damages, the judge, Alfred V. Covello, refused to give the charge. He didn't think the officer's conduct was so bad. The jury gave the woman one dollar in damages as she had suffered no damages other than the loss of a few moments time and the indignity of the stop.

I then applied for an award of attorney's fees, which is permitted under the civil rights statute. I sought a sum of about $6,000 for this very brief trial. The law permits a plaintiff's counsel to seek such fees for vindicating the rights of a person and serving as a private attorney general. Judge Covello granted attorney's fees, all right. He ordered a whopping thirty-three cents. His message was clear: Don't bother investing time and effort in suing police officers. I wonder now whether he would even have permitted this case to get to a jury given the contours of activist's new tool of qualified immunity.

Nothing I say here should be taken as support for an elected judiciary. I value an independent judiciary and my view is that judges at every level, state and federal, should be granted lifetime appointments. But these judges should not be permitted to usurp the role of jurors as fact finders; juries should be free to make the essential determination about when and whether police conduct is reasonable. Leaving the matter to judges is really just another form of tyranny.

Also listed under: Let The Jury Decide


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