[Infowarrior] - For Cops, Ignorance of the Law Is an Excuse

[Richard Forno]

For Cops, Ignorance of the Law Is an Excuse

Noah Feldman

For Bloomberg News

Thursday, December 18, 2014 
(Published in print: Thursday, December 18, 2014)

http://www.vnews.com/opinion/14838876-95/for-cops-ignorance-of-the-law-is-an-excuse

Well, you heard it here first: Ignorance of the law is an excuse, so long as you’re the police. Or so the U.S. Supreme Court has said in a 8-1 decision that symbolically strengthened the hand of the police to make stops even on the basis of nonexistent laws.

The court split hairs, explaining Monday that police ignorance is excusable only when the crime for which the defendant was convicted is different from the nonexistent crime for which he was stopped and searched. If that sounds iffy, it is. Here’s why…...

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Looked at another way, I am held responsible for the collateral consequences of my ignorance — so the police should be held responsible for the collateral consequences of theirs. Imagine that I’m jaywalking in Los Angeles, reasonably unaware as a Bostonian that there exists such a thing as a law against jaywalking.

But in the situation where the police reasonably think I have violated some nonexistent law, they’re not held responsible for the consequences, which include the search — I am. The burden of the police’s ignorance falls on me, not the state. Or least that’s what the Supreme Court has ruled. “True symmetry”? I think not.

Justice Sonia Sotomayor was the sole dissenter — and the only justice who seemed to think the case had anything to do with recent events in Ferguson, Mo., or on New York’s Staten Island. In her view, the holding had the effect of “further eroding the Fourth Amendment’s protection of civil liberties in a context where that protection has already been worn down.” And she asked rhetorically “how a citizen seeking to be law-abiding and to structure his or her behavior to avoid these invasive, frightening, and humiliating encounters could do so.” Sotomayor also pointed out that there was no reason to think the criminal justice system would somehow crumble if police mistakes of law were disallowed.

The Supreme Court shouldn’t be making traffic stops easier, especially now. And it shouldn’t be using faulty logic anytime.

Truly, I didn’t know there were such laws until I was an adult. I thought the only punishment you got for jaywalking was  to be hit by a car.

Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard.


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