05 April 2012

Wrong The First Time

Vincent Carroll, writing an opinion piece for the Denver Post, on a recent U.S. Supreme Court decision starts out his discussion as follows (part of a photo caption is also included to frame the question):

In a 5-4 decision, the Supreme Court ruled against [Albert] Florence, who faced strip searches in two county jails following his arrest on a warrant for an unpaid fine that he had, in reality, paid. . . .

In the space of 11 years, the Supreme Court has gone from allowing police to make a warrantless arrest of someone for a minor offense in which the worst penalty is a fine to approving a strip search of that person. Somehow that doesn't sound like progress.

The first decision was debatable, but at least you could see the logic. By contrast, the latest opinion is a gross intrusion into personal privacy and the Fourth Amendment's ban on "unreasonable searches and seizures."

Backward Logic

Actually, Carroll has it backward.

Allowing a warrantless arrest of someone in which the worst penalty is a fine, which guarantees that the process will inflict upon the person arrested a punishment more serious than a conviction for the crime itself would have produced is not in any way logical. Even one day incarcerated for a crime in which incarceration is a sentence not authorized by law is an unreasonable seizure, because incarceration before conviction in a general population jail is every bit as much of a punishment as incarceration after a conviction. The legal principles that require that people who have been held in jail prior to trial be given credit for time serviced if they are convicted, is a frank acknowledgment of that reality.

If the U.S. Supreme Court had held that offenses punishable only by fines were not a valid basis for an arrest under the U.S. Constitution, this would not have unduly interfered with federalism concerns or the ability of law enforcement to do their jobs. If states that felt, in reaction to a U.S. Supreme Court decision eleven years ago, that they needed to give their law enforcement officials greater latitude to incarcerate people for certain offenses that were currently punishable only by fines, states could have changed their criminal laws to permit short sentences of incarceration for the offenses where that latitude was required.

This year's decision is far more understandable. If you take it as a given that arresting someone for what the arresting officer was told by a court database was an outstanding warrant, in a locality where the government has not decided to expend the funds necessary to have a jail with separate parts for people awaiting transfer to felony sentences, people convicted of misdemeanors and serving their sentences, people awaiting trial for crimes, and people picked up on warrants for trivial offenses (and the vast majority of people in U.S. federal court circuits that have permitted it do mix all four of these categories of prisoners more or less indiscriminately), then it makes sense that some sort of uniform screening search for people entering that population should be required and that the search ought to involve a strip search. A general population prison is only secure as the least carefully searched inmate.

The four liberal judges on the U.S. Supreme Court pushed for, but did not obtain, a broader rule (adopted by some U.S. federal court circuits before the U.S. Supreme Court had ruled) that would have held that a jail that treats people in all of these categories the same is unacceptable. Their rule would have constitutionally required that people picked up on warrants in quasi-civil matters may not be treated in the same way as people who are awaiting trial for an ordinary crime, or people who have been convicted of crimes.

Instead, the U.S. Supreme Court merely strongly implied that if a government has a jail will one area of criminals and another for people arrested for quasi-civil matter, that strip searches are not justified for the latter segregated population. So, governments that do the right thing may actually have more exposure to civil rights liability than those do don't.

The Problem With An Intent Based Civil Rights System

Under our current civil rights and governmental liability laws, you generally cannot bring a lawsuit for money damages arising from unintentional negligent conduct by a law enforcement official or court official resulting in you being incarcerated for a crime of which you are not guilty and for which there was never actually any probable cause to arrest you.

Albert Florence spent six days in jail for allegedly having an outstanding warrant for failure to appear in a case where he had not paid a fine, even though the warrant was actually vacated long before when he paid the fine and was only still in the system do to a record keeping glitch.

Many Denver residents over the last few years have spent days in jail on warrants for people whom the government's files make clear don't fit the physical description of the person eligible for arrest under the warrant, and more have been arrested on warrants for someone who looks like them and perhaps even has the same name but is really somebody else.

Some people who aren't guilty of any crime are incarcerated pending trial and found not guilty. Our system is set up in such a manner that a not guilty verdict doesn't necessarily mean that a jury found that you were innocent, but no one disputes that some significant share of people who are acquitted at jury trials are indeed innocent.

In all of these cases, the result is the same. An innocent person was arrested, has been strip searched upon entering a jail, has spent some period of time (often many days and sometimes months) in jail together with criminal and subject to strict discipline designed for convicts and to exposure to many people who are dangerous to their fellow inmates, and often incurred attorneys' fees fighting the charges. If the reason that the innocent person endured this was negligence or administrative error or a policy that has not been clearly determined in a previous reported case to be unconstitutional, then this is just your tough luck.

You have no entitlement to any monetary compensation for the deprivation of liberty you experienced, the searches you endured in connection with that incarceration, or your economic losses of wages or income as a result of your incarceration.

You have no entitlement to any compensation for the attorneys' fees that you incurred, no matter how correct you were that you were innocent, unless the individual law enforcement officer who arrested you sincerely believed that you were innocent and arrested you anyway out of intentional malice or spite.

You have no entitlement to any compensation for any loss of dignity or emotional harm that you suffered as a result of being subjected to the conditions inherent in incarceration.

You have no entitlement to any compensation for any physical harm you suffered while incarcerated what was not due to the intentional constitutional violation of the guards, except in narrow circumstances where state law expressly afford you a right to compensation not required by the U.S. Constitution, typically involving negligence on the part of the guards, for example, in the sort of slip and fall, or failure to comply with building code, or medical malpractice sorts of situations where any building owner would have legal liability.

Footnotes On The Florence Case

In the Florence case, Florence claimed that his arrest resulted from a racially discriminatory stop, and that he let the officer and subsequent jail officials know that there was an administrative mistake and that the warrant for his arrest had been vacated. But, it is very hard to make a case that an arrest is discriminatory when there is indeed a valid basis for arresting you pursuant to a warrant, as the data base consulted by the law enforcement officer stated.

It is also hard to make a hard and fast constitutional rule that a law enforcement officer or jail administrator has to take seriously your claim that a warrant that appears clearly in a court data base is an administrative mistake. This is the kind of issue we usually leave to the judicial branch rather than the executive branch, although arguably one ought to imply a duty to more promptly look into the matter, if a credible claim of a mistake is raised with an arresting officer or jail administrator.

The fact that Florence was incarcerated for six days, when there is what I understood to be a constitutional duty to bring someone before a judge, where mistakes can be cleared up, much sooner than that is also something of a mystery to me. But since that part of the case wasn't the basis for the Supreme Court's decision, that aspect of the case may be best left for another day. Perhaps that constitutional violation was contrary to the policy of the government in question, and perhaps this violation was also due to negligence, in which case there would be no civil liability.

The Case For A Takings Jurisprudence For Liberty, Not Just Property

In my view, this state of the law, while clearly supported by court precedent, is ill designed.

Most of the problems with the current system could be corrected in a quite simple way, either through laws affording more protections to innocent individuals than required by the constitution by statute, or through a reinterpretation of the takings clause of the 5th Amendment.


When the government seizes the property of an innocent person, that government must pay them the an amount adequate to compensate that person for the taking of the property. When the government takes that property without following the property due process steps in advance, the suit is called an “inverse condemnation suit.” All that must be shown in that suit is that the person suing owned the property, that it was taken by the government and its value.

There should be a parallel right to bring an "inverse condemnation action" not just for property taken without fair compensation from an innocent person, but for liberty taken from an innocent person, as a matter of strict liability, from the governmental entity which deprived you of liberty (or from the person acting under color of law if they weren't actually associated with a governmental entity).

In such a lawsuit, the process that produced the deprivation of liberty of an innocent person would be nearly irrelevant in cases where someone was not convicted at trial. One would merely have to show that (1) you were incarcerated, and (2) the length of your incarceration exceed that was actually authorized by law after ignoring the legal justifications given for your incarceration if you were innocent of those charges. In cases where someone has been convicted at trial of a crime, one would first have to establish that the conviction has been set aside before the separate claim for money damages on a takings theory would be ripe, in order to avoid inconsistent verdicts, and then also have to establish your innocence.

Innocence claims would often be difficult to establish in cases where their were acquittals at trial or on appeal which could have been granted simply because proof beyond a reasonable doubt was not established or evidence was suppressed. But, innocence claims could be quite easy to establish in cases of mistaken identity, administrative error, or DNA evidence based post-trial acquittals. These are all cases that the current civil rights law regime handles very poorly and only at great litigation expense to all involved.

As in the case of inverse condemnation lawsuits involving property, the actual law enforcement officer or jail guard or court administrator whose mere negligence or even non-negligent mistake caused an innocent person to be deprived of liberty wouldn't have personal liability, except under the conditions that give a person grounds a civil rights lawsuit against that person under existing law.

But, the government that arrested and detained that person would have a duty to pay, on a strict liability basis, compensatory tort damages (both economic and non-economic) and attorneys' fees to that actually innocent person, whether he was detained for one day or twenty years, whether the people involved in the process were acting in good faith or were crooked, whether it was authorized by a court or was done without a warrant or contrary to a court order.

If a civil rights violating employee was at fault, the government could bring a subrogation suit against that employee for the damages that it was obligated to pay, and the innocent victim wouldn't be entitled to a double recovery, but recovering those damages from the employee would be the governmental entity's problem, not the innocent victim's problem.

The Benefits Of A Takings Of Liberty Jurisprudence

Unlike the morass of procedural complications the overwhelm civil rights claims and habeas corpus petitions, the takings jurisprudence would be simple and focus on the morally important issue: Was an innocent person deprived of their liberty by the government without receiving fair compensation?

Often, the facts necessary to establish this cause of action are clear, even if the existence of a civil rights violation is not. In a civil rights action, there may be questions of intent, questions of which particular government official committed the violation even when it is clear that some government official employed by a governmental entity did, and questions about whether the constitutional right violated was clearly established at the time. These considerations may make sense as limitations on the personal liability of government officials, but does not make sense as a limitation on the liability of a governmental entity.

Also, in takings jurisprudence, it is much easier for the government and the victim of its actions to simply acknowledge "mistakes were made" and reach a settlement without either the government or the party or the individuals seriously losing face.

Yes, this would cost governments a little money, but only by compensating someone who suffered a serious personal harm at the hands of the government through no fault of their own. This is precisely the kind of situation that tort litigation can work well to address. It creates a good and proportionate incentive for the government to take care not to abridge the liberties of innocent people, while in no significant way discouraging law enforcement action against people who are actually guilty.

Also, since the litigation costs in this kind of suit would be so much lower than in conventional civil rights lawsuits, the savings in litigation costs might actually make up a significant portion of the increased cost of compensation for victims under this regime.

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