Sandra Bland and the ‘lawful order’ problem

Sandra Bland was pulled over for failing to signal while changing lanes. A lot of readers have watched the traffic stop which led to Bland’s arrest for assaulting an officer. If you haven’t, you should.

The Bland video brings up an overlooked problem with the law of police-citizen encounters. The police can back up their orders with force because it’s often a crime to disobey a lawful order from a police officer. But from a citizen’s perspective, it’s often impossible to know what is a lawful order. As a result, it’s often impossible for citizens to know what they can and can’t do during a police encounter.

The first problem is knowing what counts as an “order.” If an officer approaches you and asks you to do something, that’s normally just a request and not an order. But if there’s a law on the books saying that you have to comply with the officer’s request, then the request is treated as an order. You can’t know what is an “order” unless you study the law first, which you’re unlikely to have done before the officer approached you.

The even bigger problem is knowing when an order is “lawful.” An order is lawful if forcing compliance would not violate any law. But a citizen is in no position to assess that. Even if the police pulled over the world’s greatest legal expert, the citizen still couldn’t know what orders are lawful because the laws often hinge on facts the citizen can’t know.

[Did Sandra Bland have to put out her cigarette? The law says no.]

Here’s an example. Imagine an officer walks up to you and tells you to put your hands behind your back so he can handcuff you. To do that lawfully, the officer needs at least reasonable suspicion that you are engaged in a crime and pose a threat to him and maybe probable cause that you have committed a crime. But you can’t know how much cause the officer has. Maybe the officer has no cause and is flagrantly violating your constitutional rights. Or maybe ten nuns have just sworn under oath that you robbed a bank in broad daylight that morning. You’re innocent, as it was a case of mistaken identity. But the officer doesn’t know that. And as the citizen, you can’t tell which is which.

Don’t just take my word for it. Here’s what the Oregon Court of Appeals wrote about this problem a few years ago:

Whether a particular police order is “lawful” is frequently a complex question involving some of the most vexing and intractable issues in constitutional law. For example, a police order such as “Stop!” can be an unlawful seizure of a person under Article I, section 9, of the Oregon Constitution, depending on whether the order is accompanied by a sufficient show of authority and the officer who issues the order is subsequently found to have lacked reasonable suspicion to believe that criminal activity was afoot. The inquiry is addressed on a case-by-case basis, there are few if any bright line rules, and there is an almost infinite variety of variables — some of which, such as the officer’s state of mind, could not possibly be known by a defendant. Likewise, an order to disperse might unlawfully interfere with a person’s right of free expression under Article I, section 8, of the Oregon Constitution — a determination that can surely confound ordinary citizens and has in fact confounded even judges of this court.

You might wonder, wait, if I can’t know whether an order is lawful, isn’t a law punishing me for failure to obey an unlawful order unconstitutionally vague? The courts have said no — citing, ironically, the idea that everyone is presumed to know the law! Here’s the Oregon Supreme Court rejecting a vagueness claim:

That argument, however, merely expands on an old saw — that the common man cannot reasonably be expected to know and understand the complexities of the law. We generally have rejected such arguments, instead presuming that publication and dissemination of a substantive law is sufficient to inform the public of its import. And, to the extent that the lawfulness of an official’s order can be ascertained by resort to the published substantive law, the ordinary citizen must be presumed to know and understand the general parameters of the term “lawful order.” We scarcely could do otherwise: If the extent or complexity of the law excuses obedience, it is no law. In short, we hold that the fact that ORS 162.247(1)(b) only requires the public to obey a peace officer’s “lawful” orders does not deny ordinary citizens a reasonable opportunity to know what conduct is prohibited.

Got it? If an officer walks up to you and gives you an order, you’re “presumed” to immediately know every area of state and federal law. And on top of that, you’re presumed to know all the facts known to the officer that the officer won’t tell you. Great. (Oh, and I don’t mean to pick on Oregon; it just seems to have more clear law on this issue than other jurisdictions I found.)

The uncertainty caused by such laws is likely a contributor to the anxiety and stress people many people feel, particularly in minority communities, when interacting with the police. It’s hard to know if the officer is following the law or violating your rights. And if you don’t know that, you can’t know what you’re allowed to do legally in response to the officer or what kind of reaction is justified. The officer has all the cards.

Faced with this, a citizen’s cautious strategy might be just to do everything the officer says regardless of whether the officer’s command is lawful. Even if you’re right that the order is unlawful, the officer may not know that. You might decide it’s better just to follow the officer’s illegal commands than to be arrested and spend the night in jail out of principle.

But this is America, and we didn’t fight a revolution to make that the only choice. And your options, if you want to assert the rights you have, can be awfully hard to figure out.

Is Qualified Immunity Unlawful? by William Baude

This inquiry is timely—perhaps even urgent. Over the past several decades, the Court has been slowly changing the doctrinal formula for qualified immunity. Most recently, it has begun to strengthen qualified immunity’s protection in another way: by giving qualified immunity cases pride of place on the Court’s docket. It exercises jurisdiction in cases that would not otherwise satisfy the certiorari criteria and reaches out to summarily reverse lower courts at an unusual pace. Essentially, the Court’s agenda is to especially ensure that lower courts do not improperly deny any immunity. This approach sends a strong signal to lower courts and elevates official-protective qualified immunity cases to a level of attention exceeded only by the Court’s state-protective habeas docket. While the Court doubles down on qualified immunity, the doctrine has also come under increasing outside criticism. Recently publicized episodes of police misconduct vividly illustrate the costs of unaccountability. Indeed, the NAACP Legal Defense Fund has explicitly called for “re-examining the legal standards governing . . . qualified immunity.”10 The legal director of the ACLU of Massachusetts has named the doctrine of qualified immunity as among the policing precedents that “we must seek to tear down.”11 Judge Jon Newman has argued that “the defense of qualified immunity should be abolished” by Congress.12 These calls make it all the more important to figure out whether the modern doctrine of qualified immunity has a legal basis in the first place.

THE LEGAL JUSTIFICATIONS FOR QUALIFIED IMMUNITY

The statute colloquially known as “Section 1983,” because it is codified at 42 U.S.C. § 1983, makes liable state actors who violate constitutional or other legal rights. It was first enacted during Reconstruction as a section of the 1871 Ku Klux Act, part of a suite of “Enforcement Acts” designed to help combat lawlessness and civil rights violations in the southern states. The statute originally provided: That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress; such proceeding to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts, under theprovisions of the act of the ninth of April, eighteen hundred and sixty-six, entitled “An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication”; and the other remedial law of the United States which are in their nature applicable in such cases.13As currently codified in the U.S. Code, the statute provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.14

Neither version of the text, you will notice if you wade through them, makes any reference to immunity. (The reference to the “same rights” and “other remedies” in the original statute pointed to the 1866 Civil Rights Act, which provided broad federal remedial authority, Supreme Court review, and presidential authority to direct prosecutions and use the military to enforce the Act.)

50 CALIFORNIA LAW REVIEW[Vol. 106:45 shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.14Neither version of the text, you will notice if you wade through them, makes any reference to immunity. (The reference to the “same rights” and “other remedies” in the original statute pointed to the 1866 Civil Rights Act, which provided broad federal remedial authority, Supreme Court review, and presidential authority to direct prosecutions and use the military to enforce the Act.)15Yet that is not the end of the matter. Legal texts that seem categorical on their faces are frequently “defeasible”—that is, they are subject to implicit exceptions made by other rules of law.16 “No vehicles in the park” might forbid ambulances from entering, but a separate rule of law may nonetheless provide an exception for government vehicles or for responses to an emergency.17Perhaps more to the point, legal provisions are often subject to defenses derived from common law. For example, the common-law rules of self-defense, duress, and necessity can all apply to criminal statutes that do not even mention them.18 Similarly, I have elsewhere defended the current doctrine of state sovereign immunity even though it, too, is an unwritten defense that goes almost unmentioned in the text of the Constitution.19 So perhaps Section 198320 permits such an unwritten immunity defense despite its seemingly categorical provisions for liability. To say that an unwritten defense can exist, however, is not to say that any particular unwritten defense is in fact legally justified. Such defenses come from other legal sources and must be justified on their own legal terms.

Section 1983 changed this framework. It created a direct cause of action against state officials for “the deprivation of any rights . . . secured by the Constitution”25 and thus eliminated the need to first allege a common-law claim or damages. In Hohfeld’s terms,26 most constitutional rights went from being treated as rules about power to being treated as duties.27 As a result, Section 1983 raised questions about how the new constitutional claims related to the old common-law claims, and whether the common law had any role to play in the new constitutional suits.

 

Human Development in Scripture

Walter Brueggemann, one of my favorite Scripture scholars, brilliantly connects the development of the Hebrew Scriptures with the development of human consciousness. [1]

Brueggemann says there are three major parts of the Hebrew Scriptures: the Torah, the Prophets, and the Wisdom Literature. The Torah, or the first five books, corresponds to the first half of life. This is the period in which the people of Israel were given their identity through law, tradition, structure, certitude, group ritual, clarity, and chosenness. As individuals, we each must begin with some clear structure and predictability for normal healthy development (a la Maria Montessori). That’s what parents are giving their little ones—containment, security, safety, specialness. Ideally, you first learn you are beloved by being mirrored in the loving gaze of your parents and those around you. You realize you are special and life is good—and thus you feel safe.

The second major section of the Hebrew Scriptures, the Prophets, introduces the necessary suffering, “stumbling stones,” and failures that initiate you into the second half of life. Prophetic thinking is the capacity for healthy self-criticism, the ability to recognize your own dark side. Without failure, suffering, and shadowboxing, most people (and most of religion) never move beyond narcissism and clannish thinking (egoism extended to the group). This has been most of human history up to now, which is why war has been the norm. But healthy self-criticism helps you realize you are not that good and neither is your group. It begins to break down either/or, dualistic thinking as you realize all things are both good and bad. This makes idolatry, and the delusions that go with it, impossible.

My mother could give me “prophetic criticism” and discipline me and it didn’t hurt me indefinitely because she gave me all the loving and kissing and holding in advance. I knew the beloved status first of all, and because of that I could take being criticized and told I wasn’t the center of the world.

The leaven of self-criticism, added to the certainty of your own specialness, will allow you to move to the third section of the Hebrew Scriptures: the Wisdom Literature (many of the Psalms, Ecclesiastes, the Song of Songs, and the Book of Job). Here you discover the language of mystery and paradox. This is the second half of life. You are strong enough now to hold together contradictions in yourself and others with compassion, forgiveness, and patience. You realize that your chosenness is for the sake of letting others know they are also chosen. You have moved from the Torah’s exclusivity and “separation as holiness” to inclusivity and allowing everything to belong.

Trump Lawyer Takes Communications Role Parrying Congressional Oversight

White House is assigning one of its lawyers to a new communications role to handle the stepped-up oversight coming from Democratic-led congressional committees, among other issues, a White House official said Thursday.

Steven Groves, now an assistant special counsel in the White House, will become a deputy press secretary under a broader realignment of duties in President Trump’s press and communications operations, the official said.

.. Mr. Groves had been working under Emmet Flood, the White House special counsel dealing with the Russia investigation.

Before coming to the White House, he worked at the Heritage Foundation and the Senate’s Permanent Subcommittee on Investigations.

“He speaks law, which will help,” the White House official said.

Antinomianism: against laws or legalism and moral, religious, or social norms

Antinomianism (from the Greek: ἀντί, “against” + νόμος, “law”), is any view which rejects laws or legalism and is against moral, religious, or social norms (Latin: mores), or is at least considered to do so.[1]

In Christianity, an antinomian is one who takes the principle of salvation by faith and divine grace to the point of asserting that the saved are not bound to follow the moral law contained in the Ten Commandments.[2][3] The distinction between antinomian and other Christian views on moral law is that antinomians believe that obedience to the law is motivated by an internal principle flowing from belief rather than from any external compulsion.[4]

Examples of antinomians being confronted by the religious establishment include Martin Luther’s critique of antinomianism and the Antinomian Controversy of the seventeenth-century Massachusetts Bay Colony. In the Lutheran Churches and Methodist Churches, antinomianism is considered a heresy.[5][6]

Outside of Christianity, the tenth-century Sufi mystic Mansur Al-Hallaj was accused of antinomianism and the term is also used to describe certain practices or traditions in Buddhism and Hinduism, such as the transgressive aspects of Vajrayana and Hindu Tantra which include sexual elements.[7][8]

More Perfect: Marbury vs Madison

We tend to think of the Supreme Court justices as all-powerful guardians of the constitution, issuing momentous rulings from on high. They seem at once powerful, and unknowable; all lacy collars and black robes.

But they haven’t always been so, you know, supreme. On this episode of More Perfect, we go all the way back to the case that, in a lot of ways, is the beginning of the court we know today.

Speaking of the current court, if you need help remembering the eight justices, we’ve made a mnemonic device (and song) to help you out. Listen and share below!