Blog Ipsa Loquitur

At the risk of sounding pithy, you know the maxim: ignorance of the law is no defense. Whether or not you know the law, you are responsible for following it. This might seem a little unfair, but the other option is roving gangs of untouchable illiterate super-criminals who don’t know a single law. Cops would have to read the law aloud through fantastically large megaphones as they engage in breathtaking chases with criminals.

…That actually sounds kind of cool. Remind me to come back to this during NaNoWriMo.

Okay, so ignorance of the law is no excuse. Kinda unfair. More unfair when you understand that getting your hands on a copy of the law is expensive.

For example, some states claim a copyright interest over their laws. They make you pay to get a copy. Or, more accurately, some publishing company has paid the state for the exclusive right to sell people a copy of the law. That’s bad enough, but the law isn’t “just” the laws passed by Congress and state legislatures and so on. The law is actually those laws plus a bunch of court cases about what those laws mean. There’s a $6.5 billion industry built up around selling access to court cases. The law is simply not freely accessible.

Even if we made all of that free today, laws are really complicated and the cases that modify them are even more complicated. I always joke that “I have no practical skills; I’m an attorney,” but the fact is that the one skill lawyers do have is ‘can read laws and cases and figure out what the heck.’ Normal people aren’t as good at that as lawyers are. Probably because they actually have practical skills.

Now When You Say Ignorance

Ignorance of the law is no defense, even when there’s practically no chance that you’ve read the law and the cases which modify the law and that you’ve understood the law. Sure.

That brings us to last month’s Supreme Court opinion.

In 2009, Nicholas Heien and a friend were traveling down a North Carolina highway when they were pulled over for having a broken tail light. A subsequent search of the car found a plastic bag containing cocaine. It turns out, though, that police had no legal right to stop the car in the first place because, under North Carolina law, having a single broken tail light is not an offense.

Heien contended that just as ordinary citizens cannot claim ignorance of the law as a defense, police can’t either, and because the traffic stop was illegal, the evidence from the search that followed should not have been permitted in evidence against him.

The idea that the police should be punished for illegal searches by not being allowed to use the evidence from illegal search in court is called the fruit of the poisonous tree. It’s a pretty sweet name for a legal doctrine.

And it doesn’t apply here at all! Ignorance of the law is actually pretty okay sometimes. (Hint: so far, this only seems to work if you’re a police officer.)

But the Supreme Court, by an 8-1 vote, ruled that since the officer’s mistake was reasonable, it did not violate the constitution’s ban on unreasonable searches and seizures.

Writing for the court, Chief Justice John Roberts noted that the keystone of the Fourth Amendment ban on unreasonable search and seizure is the word “unreasonable.” And in this case, the officer’s belief that having a broken tail light was illegal counted as a reasonable mistake. The traffic stop and the subsequent consensual search of the car were therefore also reasonable.

This rubs me the wrong way. Meaningful access to the law is already essentially fictional. No one should also have to guess what a police officer imagines the law is.

The Upshot

The majority opinion actually features entirely cogent reasoning, even as it arrives at a conclusion that I’m disagreeing with.

Essentially, it all rests on police being allowed to make reasonable mistakes about facts when they initiate a search. When an officer stops you on the street and asks you some questions, he or she has to be able to articulate a reasonable suspicion that would necessitate a stop. The officer has a reasonable suspicion about you that causes a stop which leads to a search.

Now, here’s the important part: the officer doesn’t have to be right. He or she can be mistaken about something, like whether you actually fit the description of someone who robbed a store a week ago. If the officer finds an unlicensed gun in your possession, their initial mistake doesn’t make the search an illegal one. (As long as that mistake was reasonable.)

So, according to this Heien decision, the police can be reasonably mistaken about the law in the same way that they’re allowed to be reasonably mistaken about the facts.

When you put it like that, it makes more sense. But really? Imaginary laws? The majority makes sure to note that they only intend for reasonably imaginary laws to be enforced, but that just seems to raise further questions.

The Chaser

Rory Little, writing for SCOTUSBlog, notes that the Supreme Court has actually held that ignorance of the law is a defense. For people, not just police. In Lambert v. California, the court actually ruled that enforcing a law against an ignorant person would violate their due process rights. Back in 1957, they wrote:

A Los Angeles municipal ordinance makes it an offense for a person who has been convicted of a [felony] to remain in the City for more than five days without registering [themselves with the police].

When applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge, this ordinance violates the Due Process Clause of the Fourteenth Amendment.

So there you have it. Ignorance of the law is no defense, unless it is. I swear, the more I learn about the law, the less I know.