Ignorance of the Law Is No Excuse

Unless you work in law enforcement


Ignorance of the law is no excuse. That's the standard line motorists hear when they say they weren't aware of the speed limit, or gun owners hear when they say didn't know about the gun laws in the jurisdiction they happened to get arrested in. Yet that ignorance is pretty understandable in an America where just about everything is being criminalized. At the federal level alone there are now more than 4,500 separate crimes, and that's not counting the massive regulatory code, violations of which also can sometimes be punished with criminal charges.

As citizens, we're expected to know and obey all of these laws, in addition to state and local statutes and the relevant court opinions that interpret the breadth and depth of all of those laws.

But what happens when law enforcement officials don't know the law? What happens when they illegally detain, arrest, and charge you even though you've done nothing wrong? Unlike you, their ignorance doesn't result in arrest or jail. And unless the violation is pretty egregious, they're unlikely to be punished for it.

Consider the case of Brian Kelly. On May 24, 2007, Kelly was riding with a friend in the town of Carlisle, Pennsylvania. Officer David Rogers of the Carlisle Police Department pulled Kelly's friend over for speeding. Rogers told the two that the traffic stop was being recorded with a microphone attached to his uniform. Kelly, who had a video camera with him, began recording the stop as well. When Rogers returned from writing a ticket, he noticed Kelly's camera. Rogers demanded Kelly turn the camera off and hand it over to him. Kelly complied.

Rogers then returned to his car and called John Birbeck, an assistant district attorney in Cumberland County. Rogers asked Birbeck if Kelly's recording violated Pennsylvania's wiretapping law. Birbeck incorrectly told him it did. Rogers then called in back-up officers and placed Kelly under arrest. During the arrest, Rogers "bumped" (the term Kelly used in his lawsuit) Kelly, causing a staple from a rugby injury to rupture, causing Kelly's leg to bleed. Kelly spent the night in jail. He was eventually charged with a felony punishable by up to seven years in prison. Cumberland County District Attorney David Freed would later tell the Patriot-News that while he sympathized with Kelly not being aware that what he did was illegal, and that he might (graciously!) allow Kelly to plead to a misdemeanor, "Obviously, ignorance of the law is no defense."

Here's the problem: Freed was the one who was ignorant of the law. So was Birbeck. And so was Rogers. The Pennsylvania Supreme Court ruled in 1989 that recording on-duty public officials is not a violation of the state's wiretapping law because public officials have no legitimate expectation of privacy while they're on the job. The order for Kelly to stop videotaping was illegal. So was Kelly's arrest and his incarceration. Freed eventually dropped all charges.

Kelly filed a civil rights lawsuit against Rogers and the town of Carlisle. In May of last year, Federal District Court Judge Yvette Kane dismissed Kelly's suit. The reason? As a police officer, Rogers is protected by the doctrine of qualified immunity. In order to even get his case in front of a jury, Kelly has to show that Rogers (a) violated Kelly's civil rights, and (b) the rights Rogers violated have been clearly established. Even if Kelly can meet those two burdens, he must also show that Roger's actions in violating Kelly's rights were unreasonable.

So it isn't enough that the police are wrong about the law. They have to be very obviously wrong for you to collect any damages from a wrongful arrest.

Kane found that because Rogers sought advice from the local prosecutor's office it was reasonable for him to act on that advice, even if the advice happened to be wrong on the law. Moreover, Kane found that because the federal appeals courts have yet to find a specific right to make audio recordings of police, that right is not yet clearly established. Kelly is appealing.

Suing Birbeck isn't likely an option for Kelly, either. Prosecutors enjoy an even stronger protection called absolute immunity. Under absolute immunity, there is virtually nothing a prosecutor can do in the course of his job that would subject him to a lawsuit.

The contradiction couldn't be starker. Kelly, a citizen who neither works in law enforcement nor has been to law school, was arrested, jailed, and charged with a felony for not knowing that an antiquated law pertaining to wiretapping prevented him from using a wireless video camera to record a traffic stop that the police officer himself was recording. Even if Kelly had broken the law, at worst he made a recording of Rogers without Rogers' consent in addition to the recording Rogers was already making. Rogers wasn't harmed at all. And for that, Kelly could have gone to prison for seven years.

On the other hand, Freed, Birbeck and Rogers are all paid by taxpayers to know and enforce the law. Freed and Birbeck presumably went to law school, and presumably passed the Pennsylvania bar exam. Knowing the state's criminal code and the court decisions that affect it is a fairly integral part of their jobs. The harm caused by their ignorance of the law is far from insignificant: A man was wrongly arrested, detained, and jailed. His First Amendment rights were violated. And he was injured in the course of his arrest. Yet they won't be going to jail. In fact, they're unlikely to be sanctioned or punished at all.

And Kelly isn't the only person this has happened to. Last month, Allegheny County, Pennsylvania settled a lawsuit with Elijah Matheny, who was arrested and charged in 2009 for recording the police with a cell phone camera. Part of the settlement requires the Allegheny County DA's office to instruct local police that citizens in Pennsylvania have the right to record on-duty police officers.

That's a start. But it's one county, in one state. There have also been recent wiretapping arrests of citizens recording police in Maryland, New Hampshire, and Oregon, despite the fact that all three states have privacy provisions in their wiretapping laws, and that no court in the country has ruled that on-duty cops have an expectation of privacy in public spaces or while performing their official duties. The justification for those arrests is that the citizens of those states should know that antiquated laws covering the tapping of phone lines also make it illegal to record a police officer with a cell phone. But just as in Pennsylvania, it is law enforcement officials themselves who are wrong on the law. And even in the rare case where a wrongful arrest leads to a cash settlement, it's generally paid for by taxpayers, not the law enforcement officials who broke the law in the first place.

And the problem goes beyond wiretapping laws. Last month, police in Washington, D.C. detained and threatened to arrest Jerome Vorus, who photographed a traffic stop in Georgetown. D.C. Police Chief Kathy Lanier subsequently acknowledged on a radio call-in show that there's no law against photographing police in D.C., but then went on to excuse her officers' violation of the photographer's rights, explaining that cops don't like having their photos taken because "we can have our pictures end up on all sorts of websites, and that can be dangerous for us." The message to D.C. cops? Citizens are permitted to photograph you, but nothing's going to happen to you if you stop those citizens from exercising their rights.

Carlos Miller, who has documented dozens of these incidents on his Photography Is Not a Crime blog, has twice been prevented by private security and public police from taking video at a Miami Metrorail station, despite getting assurance from Metrorail Safety and Security Chief Eric Muntan that shooting non-commercial video on the train and in its stations is perfectly legal. Last month, The Washington Post catalogued numerous instances where people were arrested, detained, or warned for taking pictures or video in public despite having the law on their side. The New York Times reported similar incidents, including one where a man was prevented from taking photos at an Amtrak station for a photography competition sponsored by Amtrak.

As if all that wasn't bad enough, consider this excerpt from the Post article, describing the Vorus incident in Georgetown:

Police say they were justified in stopping him because was taking photos of the inside of the squad car. Vorus, who was 20 feet away, says he "wasn't trying to make a point or cause a scene" but was merely asserting his rights.

Second District Cmdr. Matthew Klein said there is no official prohibition against photographing the interior of a squad car. But he said officers acted appropriately because they thought Vorus was escalating the situation.

"They had a situation developing," Klein said. "They had to make a call."

What Klein describes as Vorus "escalating the situation" was Vorus explaining his rights to the cops. Not only are citizens expected to know all of the applicable laws, and to know how the courts have interpreted those laws, they must also know the sometimes tortured way that current law enforcement officials are applying those laws and legal decisions in the field. Police officers, on the other hand, do not have to know any of that. And even when citizens are right on the law, explaining the law and its proper application when confronted by the police can be interpreted as "escalating the situation," which then justifies detainment and possible arrest.

For the most part, the old axiom remains true. Ignorance of the law is no defense for breaking it. But there's an exception if you happen to work in law enforcement. Unfortunately for citizens, sometimes even knowledge of the law won't be enough to prevent you from getting arrested.

Radley Balko is a senior editor at Reason magazine.

NEXT: Jack Bauer Knows Where You Can Stick Your Miranda Rights

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  1. Can Kelly file a civil suit against Freed for wrongful arrest? I’m sure a jury would find the quote from Freed to be quite enlightening.

    1. I mean in federal, rather than state court.

    2. Nope: The government gives itself immunity.

      1. Just been revoked!

  2. Still, Freed told the paper, “Obviously, ignorance of the law is no defense.”

    Authoritarian/Totalitarian bastards always fall back to that canard to justify their impositions. Of course it is a defense – whatever happened to Mens Rea?

    1. The law is a ass.

      1. No, the law is not an ass. The law is just writing on a page. The people that wrote and enforce the law are asses.

    2. Mens rea is relevent with regard to the person’s intent at the time of commission of the purportedly criminal act. It has nothing to do with whether you knew the act was illegal.

      Knowing an act is illegal and doing it anyway can cause certain violations of administrative law to be considered “willfull”, but it is not a required element of a crime.

      1. Re: WTF,

        Mens rea is relevent with regard to the person’s intent at the time of commission of the purportedly criminal act. It has nothing to do with whether you knew the act was illegal.

        Intent to committ a crime goes to the crux of the matter, WTF – a person cannot be expected to READ MINDS and see what acts suddenly were made illegal by a bunch of subnormals legislating. You cannot seriously say that a person cannot use as a defense that a law is not known, because that would place an UNDUE BURDEN on ordinary citizens to KEEP UP with legislative diarrhea.

        There’s a BIG distinction between knowingly commit a crime and doing something that until that point you KNOW it is NOT a crime.

        The “ignorance of the law is no defense” is still the fall back recourse of the tyrant.

        1. Hey, I agree with you that it sucks as a principle, but guess what – that’s the way it works and the way it has worked since time immemorial.

          I have to say, though, that I don’t think there has been a massive outbreak of people being criminally prosecuted for technical violations of administrative regulations that they didn’t know they were violating. This story itself is not such a case.

        2. You may not like it but it the law and has been since “law” has existed. It isn’t something new.

          1. Re: Law Student,

            You may not like it but it the law and has been since “law” has existed.

            IF you can interpret a “law”… Can you interpret ANY law? I have seen government officials being BAFFLED by the very laws they wrote themselves!!

    3. As long as you intended to do the action then yeah ignorance of the law really isn’t a defense.

    4. I run into prosecutors every damned day who are incompetent and ignorant of basic law. They are what you get when appointments are made based on political considerations — e.g., identity politics and cronyism — and not on professional training and skill.

      Repeal immunity and make the state accountable. It’s the only thing that will burst their little “Star of the Law and Order Show” bubble.

    5. If laws prohibit only acts that are “malum en se” e.g. real crimes that hurt someone, like rape, murder, theft, as opposed to “malum prohibitum” acts (illegal not because they harm anyone but because we said so) then anyone of average intelligence knows when they are committing a crime. Unfortunately we passed that point a long time ago.

  3. For the most part [???], the old axiom remains true. Ignorance of the law is no defense for breaking it.

    You cannot be serious – there’s a BIG difference between knowingly breaking a law, and not knowing there’s a law being broken. One implies intentionally committing a crime (for which you don’t really need a law to know it is a criminal act or malum in se); the other implies most other non-crimes invented by the government (or malum prohibitum, better known as “because I said so” laws.)

    1. When the law prohibits an act, committing the act is a violation of that law. If you commit that act, you broke that law, whether or not you knew the law prohibited the act.

      You’re confusing the distinction between a knowinv versus willful or intentional violation with the distinction between malum prohibitum and malum in se, which have nothing to do with whether you knew an act was illegal.

      1. Re: WTF,

        When the law prohibits an act, committing the act is a violation of that law.

        Tell me something I don’t know, WTF. That’s NOT the issue – the issue is if a person is criminally responsible for breaking a law he was unaware existed.

        Again, it is ONE thing to committ acts that are criminal in themselves, or malum in se, like: stealing, killing, raping, assaulting, etc. But there’s a HUGE chasm between that and breaking some obscure law some legislators voted on, or malum prohibitum – a person can’t be expeced to read minds and find out that a bunch of subnormal people decided certain act is to be “illegal.”

        Do you know all laws that exist, by the way?

        1. I do.

          Ex: it is illegal to go whaling. In Oklahoma.

          1. Ex: it is illegal to go whaling. In Oklahoma.

            It was their time spent in Oklahoma where the whalers on Futurama wrote their catchy ditty about whaling on the moon.

            1. It *is* a catchy tune, you know?

            2. The long hard diaspora of the Whalers took them to many disparate locales.

              1. They eventually landed in Hartford, Connecticut, where they established a mediocre yet popular NHL team, the loss of which is still mourned today.

        2. No, of course I do not know all laws that exist. But as they are published, if I intend to do something (like open a bakery or drive a big truck across the country), I can easily research them and find out what is required before I undertake the act – particularly now, thanks to AlGore’s internet.

          I’m not defending the overzealous prosecution of hypertechnical “violations” of every little law on the books; I’m merely observing that you seem to be saying that you have to know what you’re doing is illegal in order for your act to be punished as a crime. That is not true.

          Which is not to say that every time you do something that some law says is prohibited, you will face criminal penalties. Most of the laws creating the massive body of administrative laws provide for civil penalties for “knowing” violations, and criminal penalties only for more egregious and “willful” violations.

          If you know something is illegal and you do it anyhow, though, that can cause what otherwise might have been only a violation subject to civil penalties to become subject to criminal prosecution. But it is not always a necessary element.

          1. Bullshit you can research them and find out all the laws that pertain to what you’re doing. I work for a 10 billion dollar a year organization with a dedicated legal staff and we don’t even know what laws pertain to everything we do. The only thing that saves us? Neither does anybody else.

            1. You just admitted that your company is incompetent.

              1. Re: A is Awesome,

                Pretty much every American is incompetent to understand many of the laws in the code – even the very assholes that wrote them, never mind the Big Asshole that signed them with his sinister little hand.

                1. Talk about missing the point,spectacularly. The people who are breaking the law in this article are the police! Ignorance of the law is no excuse, ESPECIALLY FOR OFFICERS OF THE LAW.

                  The Nazi’s may have lost WW2 but they managed to take over the United States anyway.

                  1. Godwin’s Law – Drink!

                    1. Fail! Godwin’s Law only applies to the USENET.

                    2. “If you’re going to split hairs, I’m going to piss off.”

                      The Man Who Speaks in Anagrams (Monty Python)

          2. Many laws (building code in particular) reference large sections of privately written and copyrighted law that you can’t get without forking over a load of money. And if you aren’t in compliance, have fun in court defending yourself against charges that you can’t defend.

        3. If you think it through for a moment, if the defense of ignorance was allowed no person could be convicted of a crime. All they would have to say is that they did not know the law existed. How then does the prosecution prove the individual did know?

  4. What’s the big deal? You have the rights that we say you do. We haven’t said you have this particular right yet. Be glad we’re allowing you to publish this.

  5. Two classes of citizens –
    1) LEOs, prosecutors and judges.
    2) Everybody else.

    1. And I really hope that works out for them, once they’ve completely eroded the power base that maintains that distinction.

      1st against the wall….

    2. You know the score Deckard. If you’re not cop, you’re little people.

  6. doesn’t apply to recording on-duty public officials because those officials have no expectation of privacy.

    Well, at least they’ve equalized things between the public and private sectors…

    I’m here all week.

  7. Serious question: Should a LEO “illegally detain, arrest, and charge you even though you’ve done nothing wrong”, during that time (at least) could s/he be considered “an ordinary citizen” *impersonating* “an officer”?

    1. Answer: no. Qualified immunity gets them out of just about anything. They really, really have to fuck up to give up their immunities.

      Unless, of course, there’s a large political firestorm against their actions – see Rodney King for an example. This is a perfect example of what qualifies as really, really fucking up. Which is why they are so concerned about the public having video of their actions. It seems that video of misconduct can trump qualified immunity in the court of public opinion, which leads to trumping it in a court of law.

      1. Thanks, Cyto.

        Let me try another, then: Does “really, really fucking up” require physical violence?

        1. Not necessary,

          I believe the prosecutor from the Duke rape fiasco lost his qualified immunity on certain issues.
          It has more to do with either egregiously abusing discretion, committing acts harmful to the administration of justice in the pursuit of an indictment (i.e. destroying evidence) or effing around with public monies.
          The reason our “betters” are so up in arms about video evidence is two-fold: first, it destroys the benefit of the doubt afforded their testimony in lawsuits (just try winning against a cop willing to lie without independent verification), second, it is too often interpreted by jurors as proof instead of evidence.
          This latter point is a real problem when trying to explain the context surrounding the event that the juries, thanks to the video, are witnessing with their own eyes.

  8. So-called progressives, who often claim to be in favor of civil liberties, are responsible for this. This is the predictable result of their attitude that the government knows best and acts in the public interest.

    1. It’s not just progressives, it’s neo-conservatives too. Both are just too incompetent.

      1. This is the classic “Bootleggers and Baptists” coalition. The “Government knows best Left” and the “Law and Order Right” are the bedfellows that make up the ruling majority that allow this to continue.

  9. Remember this prosecutor’s comment the next time a judge, prosecutor or cop says or implies that a jury has ‘nullified the law’ simply because it doesn’t go along with some government officials *interpretation* of the law.

    Maybe it’s the judge, prosecutor, or cop who is nullifying the law, not the jury.

    Jurors tend to be a bit more conscientious about following the law than your criminal-justice professional, if only because they retain more traces of their civics-textbook idealism about the Rule of Law. Juries have been known to nullify, of course, but they are not the main “culprits” (assuming nullification is a wicked crime deserving censure, on which I won’t comment).

    1. If the local courthouse gang (cops, prosecutor, trial judge) is infallible about what the law means, how come we have appeals courts? And how come appeals courts so frequently say that prosecutors, cops and judges were wrong about the law – even that the trial judge was wrong in the instructions (s)he gave to the jury?

      Are we asked to believe that a trial judge’s instruction to the jury is “THE LAW” which the jury must obey, but is *not* the law from the standpoint of the appeals judges who say the trial judge’s instructions were wrong?

      If so, at what point did the the trial judge’s instructions to the jury about the law change from Infallible Revelation which Jurors must Follow at their Peril, into “reversible error” requiring a new trial by a different jury?

      Well, it all works out in the end, because by following the judge’s mistaken instructions, the jury allows the defense attorney to send more bills to the client.

      1. Quantum Justicanics?

      2. Quis custodiet ipsos custodes?
        Its a pretty nice scam – this soverign immunity. The people who are PAID to know the law, that is all they do, are excused from Knowing it, understanding it, and following it. Not one of these clowns, for whom there is documentary evidence that they didn’t know what they were doing, is convicted, prosecuted, demoted, or in any way punished what so ever.
        Equal justice under law…except when it doesn’t apply.

  10. show me the man, I’ll find you the crime.

    Stalin’s deputy of the NKVD during the Great Purge, Lavrentiy Pavlovich Beria.

    1. But hey, we totally WON the cold war. Yup. Sure did. Now, where’d i put my Papers. I’ll need them if I want to claim my daily allotment of victory gin.

      1. No, no, you have the script all wrong. Reagan won the cold war, you commie.


  11. Kelly went about his suit all wrong. He should have started by focusing on the DA that told Rogers that recording was illegal, and then had Rogers brought in on the suit. Unless suing “the town” counts as the DA.

  12. Off Topic:

    Google Earth Used To Find Unlicensed Pools

    RIVERHEAD, N.Y. – A town on New York’s Long Island is using Google Earth to find backyard pools that don’t have the proper permits.

    The town of Riverhead has used the satellite image service to find about 250 pools whose owners never filled out the required paperwork.

    Violators were told to get the permits or face hefty fines. So far about $75,000 in fees has been collected.

    Riverhead’s chief building inspector Leroy Barnes Jr. said the unpermitted pools were a safety concern. He said that without the required inspections there was no way to know whether the pools’ plumbing, electrical work and fencing met state and local regulations.

    “Pool safety has always been my concern,” Barnes said.


    1. I would go out in my backyard and lay out a big blue tarp and paint a concrete patio around the perimeter and then stick a couple of patio chairs and umbrella there, and stick a pool float in the middle of the tarp.

      Then let them come looking for my illegally installed “pool.”

      1. Hey, why not go all the way with an inflatable Scud?

      2. I would go out in my backyard and lay out a big blue tarp and paint a concrete patio around the perimeter and then stick a couple of patio chairs and umbrella there, and stick a pool float in the middle of the tarp.

        Wasn’t the entire pool, and its surroundings, in Nice Dreams part of the tarp? Just trying to save you some work, that’s all.

        1. Yeah, but I would be going for that extra bit of added realism.

  13. The problem I see here is that the law no longer reflects the morality of the people.

    If the law reflected basic universal moral principles of life and property, the average person would not have knowing the law because he or she would already know that the offense was wrong on a deeper, moral level.

    1. Caleb, Caleb, … Where do I begin?

      1. Feel free to take me down a notch. I’m a big boy and can take your criticism.

        But I would think that at least 98% of everbody would understand that the cops are our servants and their actions are subject to our documentation.

        I say 98% but it could be more like 100%.

        1. Sorry, Son. You’re just incorrigible.

          1. That’s one way of saying: I’m lazy or have no idea what I’m saying.

            1. I see at last someone is heeding my call for a dialogue on race.

    2. Theft, Assault, Murder.

      The three branches of crime. It’s not rocket surgery…yet my Rocket Surgeon’s Handbook is almost HALF as many pages as the US legal code. I think that says something.

      1. Isn’t Murder (and Rape for that matter) just a subcategory of Assault?

        1. Isn’t Assault a subcategory of Theft? Or is Theft a subcategory of Assualt?

          1. Thou shalt observe NIOFF.

            1. Sorry, but what is NIOFF?

              1. non-initiation of force and fraud

            2. I’m not familiar with NIOFF, and Google is providing no help…

          2. “You stole my health” as a subset of “You stole my stuff”? “You injured my wealth” as a subset of “you injured me”? Yes, I suppose it’s an arguable position. But I’d also say that “you injured me so severely that I died” and “you injured me in a sexual manner” as a subset of “you injured me” are more obvious than these.

    3. The trouble with this sentiment is finding “universal moral principles”.

  14. I understand Radley’s point about prosecutors and police officers escaping civil liability under an immunity theory. But bear one practical point in mind: when a prosecutors or police officer gets, they are usually not the ones paying for their lawyers or damages. In many states, that obligation is assumed by the municipality/county/state, either by labor contract or by statute. Which means that if you allow them to be sued civilly, it is the good ol’ taxpayer who ends up paying the freight. Isn’t that a kick in the teeth?

    1. Nope. Taxpayers should absolutely pay for the damages caused by their public officials. Might keep em from voting for total idiots. Or, they can just keep throwing their money into teh suckhole that is the government. Either way.

  15. The second sentence should have read, “when a prosecutor or police officer gets SUED…” Sorry. Long day.

  16. In the old days, they faced tarring and feathering.

    Now damages come out of the taxpayer’s pocket.

    1. Enviro police will get you for pollution and cruelty to animals.

  17. But what happens when law enforcement officials don’t know the law? What happens when they illegally detain, arrest, and charge you even though you’ve done nothing wrong? Unlike you, their ignorance doesn’t result in arrest or jail. And unless the violation is pretty egregious, they’re unlikely to be punished for it.
    But isn’t charging people for crimes they didn’t commit pretty much “modus operandi” with the expectation that for most charges, they will be plea bargained closer to what a person may have done?

  18. I just knew I couldn’t get through this board without some dipshit blaming the left for this one. Guess what, it’s not leftists, or neo-conservatives, or whatever. It’s authoritarian assholes (found on both sides of the aisle) that bring us laws like these. Why the fuck can’t people on the board see that?

  19. It’s not just progressives, it’s neo-conservatives too.


    Actual neocons (not the “neocons” that means “Jews”) are progressive infiltrators, mostly admittedly so, into conservatism, who took over the GOP Gramsci-style when the Democrats changed their foreign policy from “Start a bunch of wars yay!” to “Start a bunch of wars yay and lose them boo!”

    The neocons want to win a bunch of wars, and they figured the GOP was the place to go for that, what with their flags and grizzly-mamas and shit. Smooth move, it was.

    (Anthropologists of ratbagging teafuckery might want to check there for an origin of the conservative disgruntlement now so prominent, BTW.)

    1. Focusing only on foreign policy is, however, missing a lot of the point of the neocons. Take Ben Wattenberg (yeah, Jewish) as an example, and look at his writings on, say, demographics. In general, look at the American Enterprise Institute, which is and has been the leading think tank associated with neoconservatism, and does not limit itself to foreign policy.

      The neocons *also* include people who are former leftists who decided that social science research supported what conservatives and libertarians had been saying about the failure of the welfare state.

      The paleocons (and libertarians) in the American political tradition were largely based on appeals to tradition and to abstract concepts of liberty. These sorts of arguments were dismissed by liberals, as in Lionel Trilling’s quote, as “irritable mental gestures which seek to resemble ideas.” The fields of social science (and scientism) had been abandoned to progressives for a long time. The neocons were responsible for marshaling social science and utilitarian logic in the service of the Right. Here, I am excepting economics as practiced, though even there the “technical” practitioners have always been on the center-left as well.

      1. Excellent post

      2. If the neocons paid the slightest attention to social science, they would not be so committed to mass immigration from Latin America. You’re using an outmoded definition of “neocon”.

  20. Come on guys it’s hard out there. These cops and prosecutors have hard jobs.

    It’s not easy having to save the world from cell phone cameras.

    There really needs to be a video tap a cop day in the US.

    1. Video “tap” a cop? Using this cell phone?

      1. I have an opening available for full time spell checker and grammar nazi. (I need one since I never proof my internet posts) If you would like to apply please let me know.

        1. Nah, I assumed the slip was somewhat Freudian in nature.

          1. No no. I really do need a full time proof reader. It’s like trying to wrangle retarded cats.

        2. Can’t hlep you, sorry.

      2. Now that is an Awesome “phone”. Why can’t they come up with one that can make calls too?

  21. Cops are rarely as sexy as John McClane, and their adventures into totalitarian thuggery are rarely as cool as Dirty Harry’s.

  22. Term limit all judiciary and criminal justice positions (state and federal…even the Supremes) Amend your respective constitutions. Two years, then back to private practice. No repeats, no moving to other civil service positions.

    While at it, limit congress to a single term in the house and senate, same rules, and outlaw lobbying.

    “But this will have a destabilizing effect upon the criminal justice system and government in general.”


    1. I thought lobbying was just a form of speech.

    2. Here are my ideas for term limits:

      President – 1 term

      Representative – 4 terms

      Senator – 2 terms

    3. As for limits on Supreme Court justices, I’d just make it very easy to remove a justice if his or her decisions get out of hand.

  23. Radley:
    Why was the suit against the City of Carlisle dismissed? Qualified Immunity does not apply to local governments and municipalities.

  24. Prosecutors have total immunity from the law. That is what the 2nd Amendment is for. Shoot the SOB.

  25. Different occupations come with different perks.

    Work for airlines and you can travel for cheap or free.

    Work for a restaurant and you can eat for cheap or free.

    Work in law enforcement and you can flagrantly break that law you have sworn to uphold, with little or no consequence.

  26. Are either Rogers or Bierbeck Roman Catholic?
    (With that name, Kelly quite possibly is.)

    If so, Kelly should try a different counterattack: start excommunication proceedings against both of them.


  27. Here is a plan:

    Make every civil servant personally responsible for his/her decision and liable for it, ie. in the above example the D.A. and cop could be sued by the citizen erroneously arrested.

    Each civil servant would be covered by an errors and omissions insurance policy the premium of which would be covered 1/2 by the employer and 1/2 by that civil servant.

    If that civil servant screws up too many times so that no one will extend insurance coverage, at that point said civil servant can get a real job such as digging ditches or selling vegetables.

    Doctors, lawyers, engineers, etc. working on their own already have this arrangement.

    I am sure that this plan would put a severe restraint on bureaucracy run wild.

    1. I am sure that this plan would put a severe restraint on bureaucracy run wild.

      Which is exactly why it will never happen.

      I would like to amend the Constitution to add another chamber to Congress, popularly elected, with the sole task of repealing laws and regulations.
      This way people would run for office not based upon what they would do, but what they would undo.

      1. How about a constitutional amendment that makes all legislation null and void 5 years after its implementation?

        That would keep the buggers busy with re-enacting existing but necessary laws instead of dreaming up new ways of curtailing freedoms.

    2. Sued? Try arrested. Kidnapping, false imprisonment, assault. And the charges can go federal, with the death penalty in play. See 18 USC 242.

    3. Think for 10 seconds about how insane this is. By making prosecutors or cops pay out of their own pockets, you’re basically ensuring that they have to win the case at all costs. You’re making it impossible for them to dismiss cases (since that would be admitting that the arrest was wrongful) and perhaps even giving them an incentive to suppress or tamper with evidence and engage in other nefarious conduct to win a conviction and cover their asses.

      Apply it to the case here. The DA ended up dropping the charges against Kelly before trial. If the doing that was going to make the DA personally liable, that never would have happened. Kelly would have had to go to trial — and even if he ended up getting acquitted, that still would be a loss for him.

      1. By making prosecutors or cops pay out of their own pockets, you’re basically ensuring that they have to win the case at all costs.

        Well, no. You’re giving them a reason to not make frivolous arrests or to file frivolous charges. Don’t break the law and they don’t have to “pay out of their own pockets”.

  28. In the final analysis, we are now in a police state, and it is obvious that that is the way we want it.

  29. Newsflash: Cops are douchebags

  30. From the article:

    “Cumberland County District Attorney David Freed would later tell the Patriot-News that while he sympathized with Kelly not being aware that what he did was illegal, and that he might (graciously!) allow Kelly to plead to a misdemeanor.”

    Freed didn’t say anything about Kelly pleading to a misdemeanor. He said that in “other wiretapping cases, some involving ex-lovers or divorcing couples who are trying to record former partners doing something improper for leverage in court battles”, “Such charges have been dismissed or defendants have been allowed to plead to lesser counts or enter a program to avoid criminal records”. And of course Freed did end up dropping the charges against Kelly.

    Meanwhile, the article quotes “John Mancke, a Harrisburg defense attorney familiar with the wiretapping law” who “said the facts, as related by police, indicate Kelly might have violated the law.” That suggests to me that the state of the law might not have been as obvious as Balko suggests.

    1. I had the same thought. Then I googled John Mancke and his area of practice is listed as Driving While Intoxicated; Traffic Violations; Drivers License Suspension; Automobile Accidents and Injuries; Transportation. It seems a lot more likely he was just completely incompetent in that area of the law. The article goes on to mention that Mancke had defended someone previously on a street racing charge that also included a wiretapping charge which was later dropped. Later Mancke also refers to an exception to the law that allows police to videotape their encounters with the public. I’d imagine that in the case he worked, the charge was dropped before Mr. Mancke was able to figure out that the same exception that allows police to videotape the public allows the public to videotape police, and that the charge was utter nonsense to begin with.

      1. You might be right about Mancke, but the article still severely distorts the DAs remarks.

  31. Unfortunately Balko’s column is all too true. I got detained by a couple of sherriff deputies because I photogrpahed a peregrine falcon as part of a national bird count as it was perched on the ledge of the 8th floor of the local justice center. The deputies tried to calim that waht I was doing was a crime. I told them to cite the law. They couldn’t. I suggested that if they’re going to wear the LEO costume they better know the part properly and that harassment of private citizens exercising their rights was a federal crime. They left.

    I am of the conclusion that all cops need to have a J.D. to do the job, and not be on a power trip. That and stripping them of all immnuity, qualified or absolute. They work for us as our public servants, not as our oppressors. They need to be reminded of that.

    1. you don’t have to be a dick about it, “go find the law, i’ll wait here” will do just fine.

  32. >”Prosecutors enjoy an even stronger protection called absolute immunity.”

    These immunity doctrines were all created by judges.

  33. What about filing a complaint against the officer for making a false official statement?

  34. My comment is a question. How can we insure that this nonsense STOPS all across the country, in every county and municipality?

  35. I believe prosecutors enjoy absolute immunity only in their specific court duties and official decisions to bring charges, dismiss cases, etc. In their role as advisers to police, they have only qualified immunity.

    I *think* that’s correct.

    1. They’ve blatently tampered with witnesses, from intimidating defense witnesses, to simply coaching witnesses to parrot at them on the stand.

      They’ve destroyed exonerating evidence, and made up incriminating evidence. They’ve taken confessions beaten out of suspects while ignoring confessions of crimes already blamed on an innocent.

      The few times they’ve been convicted, it was a slap on the wrist, never close to what the innocent they framed was looking at, or had already served. If any normal person held captive another person for a decade, when convicted they’d never see the outside again. Prosecutors who do this by proxy never get treated as such.

  36. It would take two minutes for them to call back to the police station and have a receptionist do a google search for the law.

    Make it the law that they can not detain over 1 hour or put you into a cell without showing you a copy of the law you are accused of breaking. Otherwise they are subject to kidnapping charges.

    To get around the “thin-blue-line” allow public to present evidence to the grand jury and prosecute crimes involving government officials.

    Also do away with immunity- They would still have to be considered guilty “beyond a reasonable doubt”.

  37. “Wiretapping” is the act of applying wires from a listening devise, to common phone lines, in order to listen in on private conversations, without the knowledge of the party being listened to. It has absolutely nothing to do with photography, camera’s, video equipment, or even sound recording equipment, that isn’t attached to common phone lines through “taps” hence the name “wiretapping”. That’s like saying wiretapping laws cover using your eyeballs to look at certain things is illegal. This is pure lunacy. As is the whole judicial system. Organized crime is more like it. Our judicial joke causes more harm than it prevents.

  38. That term can be interpreted a few ways: ignorant laws are no excuse to not be arrested, ignorant cops are no excuse not to be arrested, ignorant judges are no excuse not to go to jail, ignorant law makers are no excuse not to know ignorant laws. As is being ignorant of a corrupt judicial system is no excuse to let it continue.

  39. There is a reason that governments almost never take a law off the books but just paper over it with another law. If a government official knows ALL the laws and has the desire, (s)he can arrest anyone for some legislative reason. Fortunately, most law enforcement officers do not know all the laws, particularly the archaic ones. If they did, they could certainly come up with some obscure justification for arresting anyone at anytime. Of course, most courts SHOULD rule that an archaic or misinterpreted law was not enforceable, but by time you are in court, it is usually too late. The point, you should know the law or readily be able to find out about any law used to charge you. Know a good criminal attorney, and memorize the lawyer’s phone number. That is what criminals do to stay out of jail. You may be law abiding but your ignorance of the system can get you screw by it.

  40. I h8 all pigs…..these people are worse than the criminals on the streets…our gov kills, rapes, murder, steals, and does stuff 10x worse than most people in jail yet they do it for the good of the country….rise up people, wake up before all ur rights are gone…f uc pigs and gov

  41. Then perhaps you live in a little bit of a bubble, no offense intended.

    As someone who works with many small businesses as their legal counsel, they are in constant danger of violating municipal, state and federal laws and regulations, and every year face fines, threats and just general unease from the way authorities come down on them for every kind of infraction. This is not to mention all manner of frivolous lawsuits from people that slip on bananas and grievously injure themselves.

    1. This was meant for the comment above: “I have to say, though, that I don’t think there has been a massive outbreak of people being criminally prosecuted for technical violations of administrative regulations that they didn’t know they were violating. This story itself is not such a case.”

  42. Keep pushing fuckers, keep pushing.
    Even sheep have a strong and painful

  43. I used to read law. Until I got older and realized the courts don’t give a crap about what the law says. They do whatever the hell they want.

    You can argue all you want about Mens Rea, Habeus Corpus, the Constitution, or what have you. It doesn’t APPLY to you. Do you get it now?

  44. “And how we burned in the camps later, thinking: What would things have been like if every Security operative, when he went out at night to make an arrest, had been uncertain whether he would return alive and had to say good-bye to his family? Or if, during periods of mass arrests, as for example in Leningrad, when they arrested a quarter of the entire city, people had not simply sat there in their lairs, paling in terror at every bang of the downstairs door and at every step on the staircase, but had understood they had nothing left to lose and had boldly set up in the downstairs hall an ambush of half a dozen people with axes, hammers, pokers, or whatever else was at hand? […] The Organs would very quickly have suffered a shortage of officers and transport and, notwithstanding all of Stalin’s thirst, the cursed machine would have ground to a halt!” ?Alexander Solzhenitsyn, The Gulag Archipelago

  45. It probably would not have been that hard for the ADA to look up the applicable case law. If Radley Balko, who wrote this article, is capable of finding the case law, certainly the ADA is capable. Giving police officers a bit of leeway is understandable since everyone should be allowed to make the occasional minor mistake, but police officers being excused all together along with the ADA is unacceptable.

  46. ignorance of the law is the ONLY excuse…

    If you ask many people in America if they ever read “The Hobbit” by J.R.R. Tolkien, they would say, “Yes, I read it in school.” (It’s required reading in many American public schools.) So this is a widely-known book, an actual treasure of the English language, and it is less than 300 pages long. Now ask someone who’s read the book if he remembers the names of all the Dwarves who visited Bilbo Baggins’ house at the beginning of the novel. Probably there are more people who can remember the names of all 50 states in America before they can remember the names of all those Dwarves, and this is one of the most widely read novels in the English language!

    Now compare that to the 30 MASSIVE volumes of U.S. Civil and Criminal Codes, all written in a deliberately confusing language, and ask yourself, “How much of that was I required to read in school?”

    Let’s not forget that those codes were all written by lawyers too. When J.R.R. Tolkien wrote “The Hobbit” do you think he wrote it to be intentionally confusing and inaccessible to the lay-person? No, in fact he did quite the opposite – he employed a simple, direct language so that even young children were able to read and fully grasp his intent.

    There is a noticeable lack of full disclosure on behalf of our government, and yet they love to assume that we entered contract with them as though full disclosure was already provided. Well, it wasn’t. Let’s be honest here, folks, the law is against us and lawyers are too. Ad probate, ad infinitum, ad nauseum.

  47. Ignorance in any case feels very bad, when people get involved in problems, ignorant things creating more problems, so we should aware of basic laws of daily issues. And great article thank you!

  48. I was talking to a snively prosecutor one day and we got into this discussion about a situation regarding what might or might not be construed criminal behavior from people in the neighborhood I lived in. I asked is there a law that covers this? He said, I don’t know. I said well, you’re the expert you studied this for many years and it’s your job. He said, no one can know all of the laws that exist. I said and yet, you have these lofty sayings when you are in court that Ignorance of the law is no excuse to people that have to put in 60 hours working in fields that are NOT related to the Law and you don’t have an answer? You care to explain that to me? How do you justify being a hypocrite by saying that? He didn’t have an answer.

    Truthfully, I’d like to take the pompous people that believe that and attach each limb of their body to 4 Budweiser Clydesdales and say “Hah! giddyup!

  49. This thing is hundred percent correct that if you ignore the law that is not forgivable.

  50. You brought up a very good point in this article. I had never thought about what would happen if law enforcement didn’t know the laws and you got arrested for something that isn’t against the law. That would be a nightmare!

  51. This is an unfortunate incident; however, as it is not a common thing, I don’t know if it should be perceived so strongly. Was it wrong? Yes. But it was a mistake and the man was let go. The police officer called in to check, and thus it is not his fault. The adviser should have known and if anyone is to be sued it should be him. However we must realize that these people are human and not purposely making mistakes.

    ? Elisa Jed | http://www.bensonshvac.com/duct-cleaning.php ?

  52. Even though the law enforcement official is wrong,i am confused about this law boundary………

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