A New Standard of Wrongness – When Police Have No Accountability
"You are saying an arrest without probable cause is a misconduct-in-office charge — is a crime?" Judge Williams asked. "So you say if you arrest someone without probable cause, it's a crime?" "
Yes," the prosecutor responded.
YES! YES! And YES! The answer has to be yes.
But what is astonishing is in the case involving the death of Freddie Gray, the judge hearing the trial of Baltimore Police Officer Edward Nero, was incredulous when he asked this question. His tone and aggressive manner in challenging the prosecution’s assertion makes it clear that he believes police officers are allowed to chase a person, violently lay hands on the person, throw the person to the ground, and cuff him – all without probable cause. If an officer does not have probable cause but grabs a person and throws him to the ground that is an assault. What else could it be? In a moment of absurdity, the judge even questioned whether an assault could be a hug. Really? Comparing a violent arrest to a hug is the height of incongruity. Apparently, this whole case was just a misunderstood moment of police affection.
Probable cause is not a high standard. If an officer cannot even provide some small fact that could be interpreted as probable cause than what right does he have to lay his hands upon someone? One of our most basic freedoms is the right to be left alone. If a person has not done anything wrong to rise to the level of probable cause, the most a police officer can do is a simple frisk and then only when they can make an even weaker standard of suspicious activity under Terry v Ohio.
When asked what Freddie Gray did to deserve to be chased, grabbed, and violently thrown to ground the answer was he ran away. That is it. A young black man in a poor neighborhood ran away from the police. No crime was observed. No suspicious activity was reported. He just ran. To the police, this was all that was needed. How dare he run from them. How dare he act as though he did not have to stop in a show of deference. Given how he was arrested without an iota of probable cause, that he chose to run says volumes about how policing works in poor neighborhoods of color.
But should we be surprised that the Baltimore police are now free to physically throw a person to the ground and arrest him without probable cause? Our justice system is broken. We have created a justice system that has lost its way. It is more important in our system to protect judges, prosecutors, and police than it is to do justice. In every other profession, if you commit a wrongful act you will be liable. Depending upon the act and the intent, it may be criminal liability or it may be civil liability. But not in our justice system. Our justice system goes to great lengths to protect judges, prosecutors, and police. Judges are absolutely immune. Prosecutors who purposely hide exculpatory evidence have no liability for the years an innocent person spends in prison. And who decides if the police are liable when they violate the law? The judges and prosecutors. In any other environment this is known as a rigged system.
And even after we make sure that none of these justice professionals ever has to answer for wrongful behavior we go even further and create these impossible barriers to achieve justice. Recently, Judge Posner of the 7th US Circuit questioned our use of legal jargon. But it is not just legal jargon, these phrases raise barriers so high that justice is lost and fairness never happens. We give ‘great deference’ to lower courts. Apparently, regular deference was not enough to protect the lower courts from too many reversals. To overturn your conviction you have to prove ‘actual innocence.’ Was there some problem with just plain old basic innocence? Facing the death penalty and the state court gets the application of law wrong. Sorry, wrong is not enough, it has to be ‘unreasonably wrong’ for a federal court to correct the error. What system is so focused on protecting those in power that it has to create a new standard of wrongness. Apparently, the same system that now creates a new immunity from criminal liability for assault by those in uniform.
Not surprisingly, after a bench trial Officer Nero was acquitted by Judge Williams of any responsibility for the unjustified arrest of Freddie Gray that ultimately resulted in his death. Perhaps his decision should be the example for our new standard of wrongness.