Rodney King is beaten; it is captured on camera and many tragic results appear to follow including massive Los Angeles rioting and the jury nullification and acquittal of O.J. Simpson. Now, several slayings of African-American men by police has led to or catalyzed the Dallas, Texas assault on police. Our nation mourns the confusing outburst of violence and the families affected by the tragedies, but behind the tumult there lies a bigger issue about the role and scope of law enforcement within America.
This is the “Elephant in the Room” which needs to be addressed lest further violence erupt in typical “backlash” patterns. That “Elephant” is the double-standard of Law Enforcement ethics, or lack thereof. Police can do one thing while enforcing something quite different on the general populace. If there is a legal and statutory standard, it should apply equally to the “enforcers” as well as the “enforcees.” But that’s not how law enforcement seems to work in our country.
A recent example comes from the double standard of applying the legal maxim that ignorance of the law is in no way an excuse for violating a law. Somehow the courts are upholding that the police are not subject to the law the way that ordinary citizens are. Police obtain a special exemption. If they are ignorant, either about the facts of a situation or the laws governing it, then they are given many discretionary powers, particularly in making traffic stops, and the laws apply differently to them since they may or may not respect the individual’s Fourth Amendment rights (against search and seizure). However, if the citizen breaks the law, that is a different story. People can sense this discrepancy.
One court case which seems to substantiate this pattern of the law enforcement double-standard was Heien vs. North Carolina. Apparently, an officer of the law was unaware that state law required only one working brake light. So one non-functional brake light did not provide a reason for making a traffic stop since no law was being violated. Lo and behold, the officer uncovered something incriminating while searching the vehicle in the unwarranted traffic stop. Normally, in United States anything discovered during an illegal search would be declared inadmissible in court. But not for this officer. The court decided to “bend” its interpretation of the Fourth Amendment rights of the citizen in favor of the officer in question, even though he was not supposed to have pulled over the motorist in the first place. Anything he found would usually not qualify as legally obtained.
This dangerous precedent in the courts erodes the rights of We the People in favor of Law Enforcement. As Madison Coburn argues in a legal piece on the implications of Heien vs. NorthCarolina,
In Heien v. North Carolina, the Supreme Court surprisingly adopted a low baseline standard for Fourth Amendment protections, holding that a law enforcement officer’s mistake of law, if statutorily “reasonable,” does not constitute a Fourth Amendment violation. n1 This approach was in the extreme minority of federal circuits. In fact, prior to Heien, the Eighth Circuit was the only circuit to adopt this approach. n2 Before Heien, the Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits squarely held that a law enforcement officer’s mistake of law was a constitutional violation and applied the exclusionary rule when evidence was found following a traffic stop premised on such a mistake of law. n3
Thus, if the courts are siding with the police who take liberties with the citizen’s civil freedoms while police are able to remain somehow cushioned from being held accountable for knowing the laws they enforce, is it any wonder that people are becoming frustrated with this situation? What is needed is a civil and peaceful conversation on the double-standard that haunts Law Enforcement. Until we begin to have that conversation, why shouldn’t we expect a seething powder keg?
Again, commenting on the balance which American courts have tried to uphold between law enforcement doing what needs to be done and preserving the rights of Americans from illegal searches and seizures, Whitehead sees the court shifting here as well in Heien v. North Carolina:
Toleration of seizures, based on mistakes of law or fact, is needed, the State contended, because “officers must be given some leeway if they are to do their jobs effectively.”n16 Law enforcement, however, already enjoys broad leeway in the performance of their duties, n17 and introducing a “mistake of law” exception to the Fourth Amendment would further imperil the right of citizens to be free from unwarranted seizures by the government.
It bears repeating that if citizens are going to be held to one standard, then the police ought to meet that standard, at a minimum, if not exceed it, due to the fact that they are professionals and have their salaries paid for by taxpayer funds. But if public servants are able to be easily excused for ignorance of their own laws which they are supposed to enforce, then why are citizens unable to plead ignorance of various laws when violating them? As Whitehead points out, the courts have already granted police officers “leeway” when performing their job. If the courts continue to discover that police can be held less and less accountable for their understanding of the laws which they are enforcing, it is hard to see how a routine traffic stop could be justifiable since the motorist may not even be aware of the laws, or law enforcement’s interpretation of the laws, which they are breaking.
Every time the court “bends” the law in favor of law enforcement against the average citizen, this sends the clear message that there is an ethical double standard. Is it any wonder that there would be a “backlash” to this sort of phenomenon? Of course, many in law enforcement are just “doing their jobs” and do not want the courts to impair the Constitution rights of the average citizen in their favor. Yet this has the unavoidable appearance of an “us vs. them” controversy. We are a “house divided,” to use Lincoln’s borrowing of KJV’s language, because we have not resolved the “double standard.” As long as the issue is ignored and swept under the proverbial rug, we will remain a “house divided.”
The double-standard has to go. Americans can only close their eyes for so long. If officers of the law are not familiar with the laws that they are presuming to enforce on the public, or at least, are not responsible for any consequences of not knowing the laws being enforced, then we have two “Americas.” The bureaucrats who have to apply hundreds, perhaps even thousands, of minutiae contained within their administrative law books and the people who have to abide by these bureaucratic rules may someday be at war. For now, these skirmishes are fairly petite. Eventually, they may increase. As the Farmington Daily Times reports,
Because traffic codes are filled with minor and sometimes arcane requirements, it’s already too easy for police to stop a car ostensibly because of a minor infraction but actually because they have a hunch that the vehicle contains drugs or other evidence of a serious crime. It would undermine the protections of the 4th Amendment even more if police could stop and possibly search a car because of a violation of a law that existed only in the officer’s mind. The Supreme Court must hold law enforcement to a higher standard.
Many Americans were struck with horror when watching the Netflix documentary, The Making of a Murderer. To see a young man have a murder pinned on him because he was forced into a false confession after hours of interrogation was simply wrong. The system is rigged against those who cannot afford a lawyer when being interrogated by the police or even against those who do not understand that they do not have to submit themselves to hours of grilling when they are not being charged with a specific crime. Naturally, the officers believed that they were acting in their community’s best interest by solving a harrowing crime with speed and efficiency. If a young man is thrown under the bus to solve a case quickly, then why not?
We’ve got to reform this “elephant in the room.” It would serve the law enforcement community as well as the communities which they strive to protect. The dialogue needs to be about having the same standard for police as for ordinary citizens who still have a few God-given rights remaining that the courts and the police have not entirely eroded.
 Madison Coburn, “The Supreme Court’s Mistake on Law Enforcement Mistake of Law: Why States Should not Adopt Heien v. North Caroline,” Wake Forest Journal of Law & Policy 2016.
 John W. Whitehead, “Is Ignorance of the Law an Excuse for the Police to Violate the Fourth Amendment?” NYU Journal of Law & Liberty 2015 108 (9).
 “Editorial: Police Should be Required to Know the Law They Enforce,” Farmington Daily Times October 15, 2014.
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