COMEDIAN Steve Martin once explained how to make a million dollars without paying taxes. First, you make a million dollars. Then, you don’t pay taxes. If the IRS finds out, you explain: “I forgot.” Then, if that’s not enough, you say, “Well, excuuuse me!”
This approach was offered in jest, but these days it’s looking pretty promising. Treasury Secretary nominee Timothy Geithner seems to be pulling it off in the tax arena even as I write this, and now the Supreme Court, in its just-released decision in Herring v. United States, has ruled that simple negligence by police – in arresting a man based on a warrant that had been withdrawn, but left in the computer by mistake – isn’t enough to justify excluding the evidence found during that arrest.
Being a “public servant,” apparently, means being free to make the kind of mistakes that the rest of us aren’t allowed.
Admittedly, the facts in this case aren’t that appealing. Bennie Dean Herring, a man with prior felony convictions, went to retrieve an impounded truck. Looking for a reason to arrest him, a police officer asked if there were any warrants outstanding. The computer showed a warrant from a neighboring county.
Herring was arrested and found to be in possession of a pistol (illegal, as he had a prior felony) and methamphetamine. Moments later, the clerk called to say that the warrant had been withdrawn, but by then the search and the arrest had been made.
According to Chief Justice John Roberts, writing for the majority, “When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply.”
You can see their reasoning. Herring’s a bad guy. Why punish the police by letting a guilty man go free when they just made a simple mistake?
Except that the rest of us enjoy no such immunity. If you’re a citizen who, say, accidentally carries a gun into a designated “gun-free” zone, the Supreme Court will not say that you can escape punishment because your action was “the result of isolated negligence.” For citizens, there’s no “I forgot” defense.
Likewise, police are given a pass, under the doctrine of “good faith immunity,” from having to understand the intricacies of suspects’ constitutional rights: A right must be clearly established before an officer is liable for violating it, apparently on the theory that constitutional law is just too confusing for police.
But ordinary citizens are expected to comply with the tens of thousands of pages of federal criminal laws and regulations (and more at the state level) and are told that “ignorance of the law is no excuse” – and this is true even in cases where the prosecution’s theory of criminality is a novel one.
Cynics might be forgiven for thinking that, instead of a government of, by and for the people, we’ve got a two-tiered system in which “public servants” instead enjoy the privileges of “public masters.”
The Supreme Court might want to think again before doing more to encourage such cynicism.
Glenn Harlan Reynolds is a professor of constitutional law at the University of Tennessee.