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For Police, Ignorance Excuses

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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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 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.

The case, Heien v. North Carolina, had its origins in a weird fact pattern that I described when the case was argued back in October. In brief, the police stopped the defendant’s car because it had a rear brake light out. A subsequent search revealed drugs in the car. But a North Carolina court later determined that state law doesn't prohibit driving with a failed brake light, so long as at least one is working.

That meant Heien’s case before the Supreme Court was about just one question: whether the evidence was admissible even though the police officer who stopped the car had not observed anything that was actually illegal. The Supreme Court's answer was yes. It reasoned that a police officer’s “reasonable” mistake of law is akin to an officer’s “reasonable mistake of fact.” And it thought it was reasonable for the officer not to know that state law technically only prohibited driving with no brake lights at all.

This conclusion required the court to confront the obvious and powerful argument that if ignorance of the law is no excuse for the individual citizen, it shouldn't be an excuse for the police, either. Its answer bears careful scrutiny because it’s a textbook example of what the rabbis who taught me disparagingly called pilpul, or legal hair splitting.

First, the court allowed that the argument “has a certain rhetorical appeal.” Then, it maintained that “true symmetry” between citizen ignorance and police ignorance would be about the crime itself, not the reasonableness of the stop: “Just as an individual generally cannot escape criminal liability based on a mistaken understanding of the law, so too the government cannot impose criminal liability based on a mistaken understanding of the law.” Thus, the government couldn't punish Heien for the nonexistent crime he was stopped for, namely driving with one brake light out. But it could punish him for drugs that were found as the result of the stop that had been based on the mistaken but reasonable error about what the law was.

The court’s logic, however, is faulty, because it confuses ignorance with nonexistence. Of course the government can't punish me for a nonexistent crime -- that's the basic principle of legality. But the crucial question at stake in the ignorance principle is what knowledge I as a citizen am responsible to have. The notion that ignorance of the law is no excuse amounts to a responsibility on every citizen to know the law. The police should have a reciprocal obligation to know the law -- which can be measured only by a situation in which the consequences of my arrest are different from conviction of the nonexistent offense.

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. The police tell me to stop so that they can give me a ticket. Ignorant of the law, and confident in my ignorance, I run. Can I be charged with the crime of evading arrest? You bet I can. I’m responsible for the collateral consequences of my ignorance, and the burden of my ignorance falls on me.

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, Missouri, 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.

  1. 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 car.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net