White-Collar Crime

Another Reason It's Better To Be A Cop Than Accused Of A Crime

The Supreme Court likes stacking the deck.

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Stories of cops crossing the line — often violently — are too easy to find.

Eric Garner, Michael Brown, that public defender in San Francisco who was arrested for representing her client by trying to stop an illegal interview of her client.

What happens to cops who break the rules? Often, nothing.

Try to sue them. Qualified immunity makes it incredibly difficult to do. (which is probably why so few really good law firms — with exceptions — do police brutality cases)

If there’s a reasonable interpretation of the law that supports the cop’s conduct, then qualified immunity will bar recovery.

Here’s how Chemerinsky explained it in the New York Times:

The Supreme Court, in an opinion by Justice Antonin Scalia in 2011, ruled that a government officer can be held liable only if “every reasonable official” would have known that his conduct was unlawful. For example, the officer who shot Michael Brown can be held liable only if every reasonable officer would have known that the shooting constituted the use of excessive force and was not self-defense.

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Chemerinsky calls the roll of crazy results:

The Supreme Court has used this doctrine in recent years to deny damages to an eighth-grade girl who was strip-searched by school officials on suspicion that she had prescription-strength ibuprofen. It has also used it to deny damages to a man who, under a material-witness warrant, was held in a maximum-security prison for 16 days and on supervised release for 14 months, even though the government had no intention of using him as a material witness or even probable cause to arrest him. In each instance, the court stressed that the government officer could not be held liable, even though the Constitution had clearly been violated.

This sucks. It protects bad cops (or, perhaps more accurately, it protects their insurance companies). But that’s not the point I’d like to make here.

You know who should really enjoy the benefit of the doubt when it comes to interpretations of the law? People charged with crimes in federal court.

Strictly speaking, the rule of lenity is supposed to do this — if a statute is ambiguous and there is more than one way to read it, then that ambiguity should be resolved in favor of the person charged with a crime. As Scalia explained it, the Rule of Lenity “vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed” (the quote is from United States v. Santos, a great money laundering opinion that is, to be clear, a rare counterexample to what follows).

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What a nice idea.

The way the Rule of Lenity works in practice, though, is that it is acknowledged in a token form by a court, then the court does great work to show that the statute is not ambiguous.

To choose but one example out of thousands, consider the Supreme Court’s decision in Whitfield v. United States (the one from 2005, not from this term). There, the Court was tasked with deciding whether the conspiracy provision in the federal money laundering statute required an “overt act.”

As you likely know, the classical definition of a conspiracy is that it’s an agreement between two or more people to commit a crime, plus some act furthering that crime.

Sometimes, though, Congress makes just forming an agreement illegal — regardless of whether there’s an overt act. Just sitting around saying, “hey, we should go further terrorism” and having someone else say “yeah, totally” is enough to commit a federal crime.

Like in the money laundering statute. Title 18, Section 1956 sets out a whole host of conduct that can be money laundering, then subsection (h) says, simply:

Any person who conspires to commit any offense defined in this section . . . shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy.

Does it say what a “conspiracy” is? No. What “conspiracy” in subsection (h) means is undefined. There are alternative interpretations of what counts as a conspiracy that include an overt act — like those in other conspiracy parts of the United States Code. Subsection (h) is ambiguous.

One would think that would end the inquiry, if the Rule of Lenity has any force. Since the plain language of the statute is ambiguous, a money laundering conspiracy must have an overt act, right?

No, not so much.

The Court finds a way to make subsection (h) not ambiguous. The Rule of Lenity isn’t really a “Rule” as they see it. As our courts use it now, it’s best seen as a preamble to a decision that hurts a person accused of a crime.

We have a muscular doctrine of qualified immunity that protects cops who might be asked to pay money, but a weak Rule of Lenity that lets the government put people in prison for violating ambiguous laws.

What would be nice, and fair, is if we could assume people are not criminals unless the law is crystal clear that they aren’t. And if we could have a police force that doesn’t act with impunity because it too often can’t meaningfully be sued.

Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.

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