If I break the law, and get caught, there is a penalty assigned to it. Speed and I can get a ticket. Assault someone and I'll spend time in jail. So, why is there no penalty for violating a person's rights?

If the US Constitution is the "law of the land", why aren't there any penalties associated with violating it?

For example, if a policeman pulls me over and searches my car without my permission, he is guilty of violating the 4th amendment, right? Yet, the worst that can happen is any evidence he finds will be tossed out of court. Why is there no penalty for his breaking of the highest law of the land?

Please understand, I hold policemen in the highest regard. I am not attacking the police here. I just want to open a dialog about this. Maybe there's something I'm missing?

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Freedom isn't free.

There are more than a few lawyers that make a good living suing police, police departments, city, county, state and the federal government for those police violating peoples rights.

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Bill Bates

I sense the ice will get thin in here.


Sgt Lumpy

As I said before I can hear the Gorilla coming down the hall.

10-9-8

There are many of our rights that are protected by law. The example you gave is not one of them, but if you are charged as a result of an illegal search and seizure when you go to court the other side loses all the evidence and they have to bear the cost of preparing for the trial so there is at least some small penalty. In fact most police departments have judges on 24 hour duty to get a search warrant if you refuse permission to search your vehicle during a traffic stop.

You are basically correct that there are a lot of rights that are not protected by our penal code. One thing to consider is if an agency violates a constitutional prohibition (violates our rights) they will argue that they are not and what they are doing is legal. It would take several trials including one in front of the US Supreme court to decide. IL and DC had trials like these and found out some of their laws violated the 2nd amendment.

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Luke 22:36

I may be wrong, but I don't believe there are definite penalties assigned by law to cover those infractions as there are for speeding, assault etc.
as mentioned, there is a legal recourse of lawsuit and damages but I don't think there are distinct penalties that apply.
Ask Obama, I understand that he's a constitutional lawer.

Not true re: police departments having "judges on 24 hour duty." LEO's have no involvement whatsoever with judiciary staffing. Most local, state, and federal court districts do, however, have on call judges to address legal issues such as warrants. It is part of the system of checks and balances.

Some big cities have night court, too, but that's another topic altogether.

Be safe.



QUOTE=jaykellogg;137574364]There are many of our rights that are protected by law. The example you gave is not one of them, but if you are charged as a result of an illegal search and seizure when you go to court the other side loses all the evidence and they have to bear the cost of preparing for the trial so there is at least some small penalty. In fact most police departments have judges on 24 hour duty to get a search warrant if you refuse permission to search your vehicle during a traffic stop.

You are basically correct that there are a lot of rights that are not protected by our penal code. One thing to consider is if an agency violates a constitutional prohibition (violates our rights) they will argue that they are not and what they are doing is legal. It would take several trials including one in front of the US Supreme court to decide. IL and DC had trials like these and found out some of their laws violated the 2nd amendment.[/QUOTE]

If you have tons of money to hire lawyers to prove a point maybe you might win. Unfortunately most of us dont and move on. I always like the usual snob answer, "Well if you dont like a law get it changed"! Yeah, right. Fat chance.

You should note that in most every trial, there are two lawyers. Each one presents a good and reasonable argument. You may be wrong when you think your rights have been violated.

There are actually potential criminal consequences that could address the question raised in addition to the civil suit potential. We do in fact have federal laws on point, but they are not often used for a lot of reasons. There are often state laws of such nature, too.

In a case such as the one raised, the first issue to address would be whether there would be a criminal mental state (presumably intent) to the act. Most of the search and seizure stuff I have litigated (as a criminal prosecutor) or advised on (as a civil government lawyer advising the SO) involved shades of gray and error, not intent. That would be a huge issue to overcome in order to file a criminal case. Since the standard (in this case search and seizure) is sometimes a moving target, there has to be very well established parameters that are violated. I have been involved with cases in which I advocated using our state's analog to the Federal criminal Civil Rights statutes. It's a heck of a hammer, as there is a mandatory forfeiture of not only current employment, but of any government employment in this state, for life. (I know the case law and have briefed it.)

In addition to the difficulty of proof in the criminal context (as opposed to the lower burden in both civil litigation and administrative/employment setting), there is a resource allocation issue. I might think that cases of this nature are not being filed as often as I think they should, but there were a lot of cases I reviewed that met the standards for filing as a felony, but we simply did not have the resources to address as such. We had to prioritize, and of course put crimes that resulted in serious injury or risk of it at the top, and financial at the bottom. In my old office, I am pretty sure we could have reduced all of our filings to "most serious" offenses (the label applied to "strike" offenses here) and residential burglary, and done nothing else, yet been adequately busy. At best, we could file MAYBE 1/2 of the provable felony criminal case referrals we got.

There is also a lack of political will, too, and I've seen varying levels of it. (Remember that prosecutors are the ones who make the filing decisions, they have largely unfettered discretion, and that as a matter of law under separation of powers and other doctrines, the judiciary and legislature cannot coerce filings decisions.) I personally think the Feds are the worst, and they also tend to file stuff that in my experience should not have been, because they don't know much about use of force (very few lawyers, including criminal practitioners, do). There is also a serious history of DOJ violations of disclosure of potential exculpatory evidence ("Brady" disclosures) - see the Stevens, Thompson, and post Rodney King cases.

My office spent about 18 months in litigation over trying to follow our Constitutional mandate to disclose such info about a crooked cop to the defense. We had many cases affected, got sued in another County to keep us from doing this, (won at the Court of Appeals and review was not granted by the Supremes), and ended up with a ton of time and money (somewhere around $750K in attorney and staff time wasted in the direct litigation) and then the related Bar complaint from that filthy animal and his attorney, which cost some additional unholy amount. I got deposed by Bar counsel, and my opinion of her would peel the paint off a battleship. She was at least as ignorant about what I do as I am about nuclear physics, and that's the nice version.

There is a lot to this area. Sometimes i think we don't do as much as we should. The worst agency in this state with regard to violating the rights of citizens AND its employees, with a staggering dollar figure of payouts, has such a good publicity machine that they are still well regarded, when I think they need a RICO enema.

It is imperfect, but there are a lot of details that impact the process.

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NHI, 10-8.

We're done here..

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SWCA #2306
DAV in honor of POP