During the oral arguments today before the US Supreme Court in the case of County of Los Angeles v. Mendez Justice Sotomayor grudgingly recognized the personal right of self-defense guaranteed by the Second Amendment or in her view “given” to us by the Supreme Court.
Ironically, and perhaps intentionally, Justice Sotomayor posited a scenario from a case the Supreme Court decided nearly 70 years ago very similar to the one argued before the Court today.
The 1948 case, McDonald v. United States, involved a warrantless entry to a home where a plain clothes police officer pried open a landlady’s porch window and climbed into her bedroom in order to gain access to her tenant’s room who was suspected of running an illegal “numbers” (gambling) operation.
Those were the days when Justices weren’t afraid to call police criminals.
“Here the police gained access to their peeking post by means that were not merely unauthorized but by means that were forbidden by law and denounced as criminal. In prying up the porch window and climbing into the landlady’s bedroom, they were guilty of breaking and entering – a felony in law and a crime far more serious than the one they were engaged in suppressing. Having forced an entry without either a search warrant or an arrest warrant to justify it, the felonious character of their entry, it seems to me, followed every step of their journey inside the house and tainted its fruits with illegality.” Concurrence by Justices Jackson and Frankfurter.
In the case decided by SCOTUS in 1948, nobody got shot. In the case argued before SCOTUS today Mr. Mendez was shot and lost a leg. His pregnant, unarmed girlfriend was also shot. Why? Because the police illegally entered the shack he and his girlfriend were living in and Mr. Mendez moved a BB gun so he could get up as the police broke into his home.
The lawyers for the County of Los Angeles didn’t even pretend that the police acted lawfully. Their argument is best summed up as “No,” the police did not have a warrant and “No,” the police did not announce themselves when they entered his home and “Yes,” the police were breaking the law but “So what?” All that matters is that it wasn’t clearly established law at the time that the police couldn’t shoot someone even though it was the illegal actions of the police which resulted in the police unlawfully shooting Mr. Mendez and his pregnant girlfriend (now his wife).
The 9th circuit court of appeals saw the case differently. Twenty years ago this circuit created a precedent which, applied to this case, held that the county was liable because the deputies had recklessly provoked a violent confrontation by not having a search warrant and by not knocking and announcing, and had thus created the situation which caused the injuries to Mr. Mendez and his wife. The 9th Circuit decision was written by Judge Gould.
The 9th circuit upheld an award of $4 million each to Mr. Mendez and his wife which the County of Los Angeles now seeks to reverse.
How did we reach the point where activity which is clearly criminal by police in 1948 could, and likely will, in a decision by today’s Supreme Court allow the police and County to get off the financial hook?
The answer is because a generation later a different US Supreme Court created the fiction of “qualified immunity” in a 1971 decision in which the Court held that police could be excused for violating the law if there was not a decision at the time which “clearly established” that there actions were unlawful when the police broke the law.
The justices of the US Supreme Court of 1948 graduated law school when not only did police not have “qualified immunity,” police could be privately prosecuted in criminal court by their victims or their surviving family members or friends. There was a time when a private citizen could actually “press charges.” Today, except for a small minority of states where that is still possible, only the government can criminally prosecute someone and, “Surprise! Surprise!” the government rarely prosecutes one of its own.
Moreover, when the justices who sat on the court in 1948 were born and raised, most police officers were privately employed. Municipal police departments as we know them today are a product of the early 20th century. It was unthinkable to them that just because a police officer now wore a badge issued by a city instead of one issued by the Pinkerton Detective Agency that a government issued badge had some magical power which gave police immunity from prosecution, criminal or civil.
Justice Sotomayor seemed to be the only justice on the Court today who “gets it.” She posed the following questions today during oral arguments:
“[I]f they [police] jump in front of a car, of a total stranger on the street, and the person is coming at them, should that person behind the wheel bear the brunt of an injury because the police officer says the car was coming towards me, so to save myself, I pulled the gun and shot them, even though this is Joe Blow who’s never been arrested, doesn’t own a gun, never knew the officer had jumped into the street? If a normal person did that, they’d pay for that victim’s injury. Why does a police officer get a pass on that?”
The attorney for the Federal Department of Justice arguing on behalf of the County of Los Angeles did not give a straight answer and so Justice Sotomayor pressed on by asking:
“So is it [okay] for a police officer to pull a gun and shoot a driver that has no guilt associated with him or her? Not an armed felon, just a normal person to stumble into the street and say, I’m a police officer, I’m going to seize that person and stop myself by being injured by shooting that person?”
The attorney for the Federal Department of Justice arguing on behalf of the County of Los Angeles did not answer the question which is a pity. The greater pity is that based on the questions posed by the other justices, neither will they when they publish their decision.
Post Script – Last Thursday, the majority of judges on the 11th Circuit Court of Appeals upheld the granting of “qualified immunity.” I quote the first paragraph from the dissent:
“This case arises out of the fatal police shooting of an innocent young man. Andrew Scott and his girlfriend were in their home playing video games late one night when police arrived outside. The police had no warrant and no reason to suspect Mr. Scott or his girlfriend had committed any crime. The officers acknowledge both of these things to be true. Even so, the police tactically surrounded the home’s only exit, drew their guns, repeatedly slammed on the door without identifying themselves as law enforcement, and then shot and killed Mr. Scott when he opened the door, as he was stepping back into his home. The District Court rejected the 42 U.S.C. § 1983 claims brought by Mr. Scott’s bereaved parents and girlfriend, holding that the police acted reasonably. A panel of this Court affirmed in a three-sentence, unpublished opinion, and now a majority of this Court’s judges have voted not to rehear the case en banc. I dissent from that decision.”
As my regular readers are aware, I have a lawsuit pending before the 9th Circuit Court of Appeals seeking to strike down California’s bans on openly carrying firearms in public for the purpose of self-defense.
In my case the district court upheld California’s Open Carry bans partly based on the legislative findings of the California legislature that it is the police who create a danger to the public because they might shoot someone, and those around them, because that someone is openly carrying a firearm in a place where it is legal for firearms to be openly carried for reasons other than self-defense, such as for hunting, or where it is legal for others (such as lawyers and claims adjusters) to openly carry firearms.
Fortunately, qualified immunity does not factor into my lawsuit because I am seeking to have California’s Open Carry bans struck down as unconstitutional before I am shot. If I am successful then no police officer in this circuit will be entitled to qualified immunity if he shoots someone for merely carrying a firearm inside or outside of his home because it will be “clearly established law” that shooting someone for merely carrying a firearm is unconstitutional.
The gun-hating liberals should thank me for this. Instead, they and the so called gun-rights groups (NRA, CRPA, SAF, Calguns.nuts, GOA, GOC, etc.) oppose my lawsuit.
California Governor Brown and California Attorney General Becerra also oppose my lawsuit. They are, in fact, the defendants in my California Open Carry lawsuit.
According to them, I am an extremist because I want to make it “clearly established law” that if the police shoot someone, or if the police shoot an innocent bystander, merely because that someone is openly carrying a firearm then the police have broken the law.
After all, it is already clearly established law that police cannot shoot someone merely because he is carrying, or is believed to be carrying, a concealed weapon regardless of whether or not that concealed weapon is carried legally or illegally.
If I am an extremist then I much prefer it to being a mentally unbalanced gun-hating liberal or an effete wanker from one of the so called gun-rights groups.
And I most definitely prefer it to being someone like Governor Brown and Attorney General Becerra who want police to go unpunished for shooting people who exercise their Second Amendment right to openly carry a firearm in public and in their homes for the purpose of self-defense and for other lawful purposes.