I get many calls each week from people who believe they have been abused by the police. That is because for many years I was at the forefront of police misconduct litigation. But these days I rarely file a complaint against police officers. It is not that I have become a police groupie. Rather, I've read the handwriting on the wall. In the past decade, there has been a silent coup d' etat. Our courts have transformed themselves into the guardians of a police state in a stunning, and largely unnoticed, act of judicial activism. Their primary tool was a tricky legal doctrine known as qualified immunity.
This coup has gone unnoticed by the general public. Even academics seem blind to its import. Practitioners know better.
Consider the following fact pattern: A man calls to complain that his son was brutalized by local law enforcement officers. He was hit with fists, kicked and subjected to high-voltage shock by a police officer using a Taser. The man is angry. How could police do this?
I ask what crime the boy was charged with. The man seems surprised by the question. How had I known his son had been arrested? I know the boy must have been charged with interfering with a police officer, a charge that makes it a misdemeanor to obstruct, hinder or delay an officer in the performance of his lawful duty. Just what does this mean? The statute is so broad that almost anything other a supine bending of the knee is a crime. Police routinely charge the crime when force is used to take a person into custody. It is the first line of defense against a charge of unreasonable force: We needed to use force against resistance.
The boy's father did not want to hear a word of it. How can a boy in handcuffs resist arrest?, he asks with scorn. I tell him about cases I have seen. Young men in handcuffs who kicked out windows of police cruisers, in one case kicking so hard as to dislodge a car door from its joints. I try to explain that the law permits the police to use reasonable force to overcome a person's resistance. There are many judges who would conclude that the use of a Taser is justified against a person wildly kicking while cuffed. Bringing a civil action against the police carries with it a substantial risk that the case will be thrown out by a judge granting the police officers qualified immunity.
By now the caller has transferred his anger against the police to me. The police were wrong, he tells me. The case is a slam dunk, he insists. I tell him to take the slam dunk elsewhere. There is no such thing in the world of police misconduct. The call ends with the man no doubt wondering whether I am defending police officers. I hate fielding such calls.
We boast about the rule of law, saying that no one is beyond the law's reach. That's not quite true. The law recognizes broad immunities. If life is a board game, the rule of law defines what pieces on the board can do to one another. An immunity removes a piece from the board, placing it beyond the reach of the law. Thus, a lawmaker trashing a person on the floor of a legislative chamber is absolutely immune from a suit for defamation. We say the lawmaker is immune by operation of law: In other words, any person who knows the law knows that the lawmaker cannot be sued.
A qualified immunity is one that a judge is free to impose or not, depending on the facts presented to the judge. In the context of police misconduct litigation, judges are free to grant a police officer immunity from suit if the officer's conduct does not violate clearly established law or if reasonable police officers could disagree about whether the alleged conduct violated the law. Translated into lay terms, police officers are given the benefit of the doubt in close cases. But judges, not juries, make this call. That's the coup.
Qualified immunity is a prime example of judicial activism, yet no one on the right seems very concerned when judicial activism narrows the rights of ordinary Americans. Fifteen years ago, the courts rarely granted qualified immunity to police officers; now it happens with a regularity that makes it pointless to file suit against police officers in all but the most egregious cases. In other words, a powerful legal doctrine created by judges has declared broader and broader ranges of police conduct beyond the reach of the law. Police misconduct cases rarely it to juries any longer. Judges, not the people, decide what is reasonable for police to do.
The judiciary is self-satisfied about this, and why not? Throwing a case out of court is a whole lot less trouble than going to trial. But it comes at a cost. The cost is a police state. Officers are free to act with impunity, their conduct beyond the review of ordinary citizens so long as it satisfies the jaundiced eye of a judiciary free to decided without real review what is and is not reasonable.
I read these judicial decisions and although I do not weep, I heed what they teach. There is little point in filing a suit that will simply be tossed from court. I send most callers away these days. There are a lot of angry people out there who aren't getting justice in the courts. I suppose when there are enough of them out there someone will listen. But the listeners aren't on the bench; the nation's judges have become accomplices in a police state; most of them don't even realize it.
Twitter, for those of you who do not yet know this, is a social networking device that permits folks to send and receive brief, instantaneous messages of no more than 140 characters. You can send and receive messages from a computer, a cell phone or another electronic device, such as an Ipad. You can "tweet" anywhere an electronic signal is available, including a courtroom: the practice is known as "tweeting." Does Twitter belong in a courtroom?
Almost certainly not, I say. Reports from the trial of State v. Steven Hayes demonstrate why.
The invasion of the Petit home in Cheshire during the summer of 2007 is by now a legendary event ranking just behind Eve's beguilement of Adam or the Romans' rape of the Sabine women. People can't get enough of the case. Reporters line up for limited seats outside the courthouse as early as 5:30 a.m. News trucks line the streets outside the courthouse. We gasp in horror over the crimes and then scream "more, more" to those who report on it. We love to hate the what is reported.
The press has been obliging: Reporters have been sitting in the courtroom tweeting their fingers to the bone about events at trial. Led by The Hartford Courant's Helen Ubinas, who tweets under the dramatic nom de tweet NotesfromHeL, a host of reporters are providing up to the minute tweeting about the trial.
These verbal snapshots of trial are coveted by folks with a need to know what happens the very moment it occurs. But what, really, is being reported, and what do the reporters think they are doing pecking away at tiny keyboards during trial?
Ms. Ubinas and Rachel Guerra, a New Haven television reporter, are honest about what tweeting is: it as an adjunct to the world of conventional print and television reporting. "Immediacy is great," Ms. Ubinas told an interviewer recently. "Engaging readers is key to our survival." Ms. Guerra expressed a similar thought in the same interview. Tweeting "is a great opportunity for news outlets to create synergy between their television product and the online world." The isolated facts tweeted from a courtroom are part reporting, part marketing.
But reporting isolated facts has little value. Indeed, the practice of tweeting carries the danger of distraction. In the Hayes case, reporters have tweeted about Dr. William Petit Jr.'s every movement. We learn that he touches his head, he leans over, he sighs in response to testimony. In the race to show how sensitive they can be in broadcasting details about the Cheshire home invasion, reporters have deified Dr. Petit.
Courtrooms are a complex place. I wonder what sort of social chemistry is created in a courtroom when reporters focus on a victim and spend their time studying him and reporting his every move. Researchers in group dynamics are well aware of the unspoken but real social cues that convey meaning to strangers in a group. Can it be said with confidence that the jury in the Hayes' case have not been influenced by the fact that one of the state's key witnesses has been given the Michael Jackson treatment?
We do not permit television or radio in courtrooms in order to avoid distraction. We worry about how these media might distort the truth-finding process. By barring these media, we deprive the public of information. But at least information from radio or television is accurate and unfiltered. Why ban radio but permit live tweeting?
At one point in the Hayes trial the jury reported it could not hear the evidence over the clacking of keyboards. Why is it that in some courtrooms folks are required to turn off cell phones, but in this courtroom folks are encouraged to use them, so long as it is for the purpose of sending tweets. A distraction by any other name is a distraction.
Tweeting during trial is a dumb idea. If we're going to provide contemporaneous information, then permit an unobtrusive radio microphone to broadcast the sounds. Television cameras, twitting groupies, and clacking keyboards are as offensive as a sandwich board in the courtroom. Let the media hawks its product by something other than 140 word snippets cranked out at break neck speed while trial is in session.
Reprinted courtesy of the Connecticut Law Tribune.