Law-With-A-Capital-L

Originally, I had titled this post, “Ignorantia legis persona.”

Yeah, I know. It’s all Greek to you.

But, actually, it’s Latin – and unless I screwed it up, it means “ignorance of the law person,” by which I mean “officer.” ^[1]I speak some Spanish; not Latin. But I think that’s right.

Why Latin? Latin is the language of the Romans. Certain legal principles that form the foundation of our legal system come down to us from the times of the Romans. They’ve been tested by time, and understood for centuries to form the basis of a system of Law-with-a-capital-L.

Law-with-a-capital-L is important because, without it, we essentially have arbitrary rule by one or more oligarchs. Which, as I will explain, is the antithesis of freedom.

As this Wikipedia entry introduces things, we see more Latin phrases, along with the explanation for their meanings:

Ignorantia juris non excusat or ignorantia legis neminem excusat (Latin for “ignorance of the law excuses not” and “ignorance of law excuses no one” respectively) is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content.

European-law countries with a tradition of Roman law may also use an expression from Aristotle translated into Latin: nemo censetur ignorare legem (nobody is thought to be ignorant of the law) or ignorantia iuris nocet (not knowing the law is harmful).

By the way, Aristotle was Greek, so maybe that’s why this all seems Greek to you: the original concepts can be traced back to the ancient Greeks.

Anyway, the Wikipedia article then explains just why this matters: if our system did not presume such a principle at the start, the system falls apart. Whenever someone got into trouble with the law, all they would need to do is claim that they did not know the law, and that they should therefore escape the consequences of having failed to follow the law.

In fact, when I handle medical marijuana cases, this is frequently the problem. Someone obtains what they erroneously refer to as a “medical marijuana license,” or a “growing license,” or a “prescription,” or, sometimes, a “permit.” None of these terms are legit; none has any basis in law. But those who believe they hold them also believe they are thereby protected by the Compassionate Use Act of 1996 (approved by California voters, and so meaningless to law enforcement officers in Central California), or the Medical Marijuana Program Act of 2004 (passed by the legislature at the end of 2003, and so meaningless to law enforcement officers in Central California).

Because many doctors have no fear of practicing law without a license, they falsely inform their patients that they are “authorized” to grow up to 99 plants. At least, that’s the most common number. Sometimes it’s “30 plants” – still probably not legal. ^[2]The reason for this is that California law actually allows – where it is allowed at all – only enough marijuana as is reasonably necessary to treat the condition of the individual possessing it. People v. Kelly, 47 Cal.4th 1008 (2010).

Once the patient is found growing marijuana – and in most counties where I practice law (Fresno, Madera, Kings, Tulare, Merced) there is some kind of ban on this in place – they are arrested. The charge is violation of the felony law of the State of California which forbids cultivation of marijuana.

This blog article isn’t meant to be about marijuana law – medical, or otherwise – so I’m going to leave that topic by simply pointing out that 1) it’s not always the case that this charge is appropriate, and 2) the normal reason people tend to be in violation of the state law is that they didn’t know that the doctor’s “license/prescription/permit,” was none of those things. They believed they were complying with the law.

Now, admittedly, some of those people almost certainly knew they were not following the law. But there really are large numbers of people who fully believe that by going to the doctor, doing what they did, they were in compliance with the law.

Guess what? It’s still nearly impossible to defend them. Why? Because ignorantia juris non excusat. Ignorance of the law excuses not.

Unless you’re a cop. If you’re a cop, ignorance of the law is virtually a job requirement.

Cops don’t worry about knowing the law because the law never applies to them. Headed home for the day, when a cop – also headed home for the day – passes you at 80, or more, miles per hour in his department-provided car? That’s because traffic laws don’t apply to cops. Even when they’re off duty. See a cop car parked in a handicapped spot? That’s not because they’re counting their mental capacity as a handicap: it’s because the laws relating to where you can park apply to you; not to them.

This is also why cops beat people who don’t do what the cops tell them to do. Yes, there are laws about that. Departments even have written procedures that forbid it in many cases. And killing unarmed people – black, white, or green? Forbidden both by law, and (usually) department procedures.

But none of that stuff applies to cops. Written things like Constitutions, statutes, or departmental procedures only apply to everyone equally in nations that follow the rule of law. The United States is not such a nation.

The United States is a nation that follows what used to be called, in sexist days, “the rule of man.” ^[3]Note: this Wikipedia article is incomplete, and has problems. But the statement I quote here is an accurate definition for the rule of man.

Rule of man is absence of rule of law. It is a society in which one person, or a group of persons, rules arbitrarily. The Sovereign exercises absolute authority and is not bound by any law, he as a person stands outside law.

In today’s United States of America – yes, all 50 states, including all their municipalities – one group of persons rules arbitrarily. Collectively, they are known as “the government.” It might be members of a local government, like the police, or other members of the incorrectly-named “law enforcement” community, such as District Attorneys. They might be members of the State government, such as judges. And they could, of course, also be “feds,” belonging to the comparable-functioning departments at the federal level.

Because most government agencies are big on theater, cops still pretend to follow, and pretend to enforce, “the Law.” Judges still say certain phrases, and pronounce certain judgments laden with such phrases, in courts “of Law.”

But the reality is that there is probably nowhere in any part of the world controlled by the political entity known as “The United States of America” that actually follows the Rule of Law.

Nor do we actually teach the law anymore. Sure, if you go to law school, you might read some old (or even new) things called Opinions. The old ones might cite what is referred to as “the Law.” But as you get closer to modern times, you’ll see that these written Opinions are just that: opinions.

And as there is seldom any real principle behind these opinions, it is impossible for any person, or group of people, to keep track of all the convoluted pretensions at “law” that these opinions constitute.

The destruction that this wreaks on a free society is almost incalculable.

I say, “almost,” because if you really think about it, it’s absolutely calculable. And quite easily.

For example, one of the areas where the Law of the United States of America is most often ignored these days has to do with the way that government agents – starting with police officers, protected by prosecutors, sanctioned by judges – control every aspect of your life, without restraint.

Take “search and seizure.”

Technically speaking,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This is the text of the Fourth Amendment – part of the Bill of Rights – of the United States Constitution. On its face, it might appear to be relatively straightforward. And when the United States was a nation of laws, and not of men (to use the sexist terminology of the times in which we did make the attempt to follow the laws), it did tend to mean what it appears to say. Government agents were constrained against coming into people’s homes, or grabbing them off the streets, or stopping their vehicles and arbitrarily searching them.

Ever since Leon, that is no longer the case.

For a while prior to Leon, there was a rule that – if I recall correctly without going to look it up – was crafted in about 1961, after the Fourth Amendment began to apply to states (by way of the Fourteenth Amendment). That rule said that if government agents did violate the Fourth Amendment, then any evidence that they seized was inadmissible in a court of law.

But this was a problem, because too many government agents were either ignorant of the law, or acted as if they were ignorant of the law. The result was that courts run by judges who still followed the law routinely excluded evidence that had been illegally obtained by government agents. I wasn’t practicing law in those halcyon days, but I understand it was a fun time to be a criminal defense lawyer. People actually had rights. And judges actually enforced them.

At any rate, you can see the problem here. Evidence against “criminals” – more accurately, against people who had been accused of crimes (some of whom probably were committing crimes) – would be found by police using illegal tactics, and the accused people (some of whom, remember, probably were committing crimes) would go free. This isn’t a new problem. As the United States Supreme Court noted in 1987,

[T]here is nothing new in the realization that the Constitution sometimes insulates the criminality of the few in order to protect the privacy of us all. ^[4]Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347, 357 (1987).

But since the advent of the War on the United States Constitution and to advance the goal of turning the U.S. into a police state the War on Drugs, this has become an increasingly unpopular view. Though the United States Constitution was created for the express purpose of reining in the natural tendency of the majority to impose their will on others because they are too short-sighted to see how it can also hurt their freedoms, a large enough number of us has decided to tear it down that – as the Borg always say – “resistance is futile.”

Just because the law in a nation that follows the Rule of Law applied to the police, the same as to everyone else. It’s not that the Constitution prevented cops from doing their jobs: it’s that it required them to do it in accordance with long-held legal principles. And that’s hard when your officers are busy trying to figure out how to spell “furtive movement,” and chasing down stray donuts.

There were two ways to combat this problem. One was to make sure government agents understood, and followed, the law. This would stop most instances of illegal activity by police officers resulting in dismissed cases against accused people. The other way was to abandon the Rule of Law.

As alluded to above, training police officers turns out to be very difficult. Police officers, as a whole, are not very smart. In fact, being intelligent is an undesirable trait for a police officer. This explains why most police reports are difficult to read: a large number of police officers are borderline when it comes to literacy skills.

Thus it was that judges decided to take the second path to combating the problem of evidence made inadmissible by police officers violating the laws.

But there is a problem with this abandonment of the Rule of Law.

The right of the people to be free from unreasonable searches and seizures guaranteed by the Fourth Amendment ranks as one of the great freedoms established by the American Bill of Rights. It is surely indispensable to a free society. ^[5]Phillip A. Hubbart, Making Sense of Search and Seizure Law: A Fourth Amendment Handbook, p. 5, (2015).

Too many people have abandoned the idea of enforcing “the technicalities” of the Constitution because in a nation that follows the Rule of Law, too many people accused of crimes go free when government agents break the laws. ^[6]These days, “one” is deemed “too many.” Long gone are the days when it was deemed better that ten guilty people go free, rather than having one innocent person suffer.

That’s why Thomas Jefferson, and the other Founders of the United States of America (that’s right, younguns, it didn’t always exist), decided to build the nation as one of the first, and only, nations that followed the Rule of Law. As Jefferson put it:

In questions of power … let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.

In other words, don’t trust the police to do the right thing. Make them do the right thing by adhering to the Rule of Law.

The problem is with getting the police to do it. As can be clearly seen over the last few years in video after video, police cannot even stop themselves from killing unarmed people who pose no threat to them. How do we expect them to recognize limitations on their abilities to search, or seize, or violate any other principle of the Constitution?

In the end – and this post, at least, needs to come to an end – I don’t really know what to suggest. The police aren’t going to willingly stop breaking the law. Judges, who could encourage them to stop by honoring the Constitution won’t. Nor do the People seem to have the courage to make them, anymore.

When it comes down to it, maintaining freedom by making the police adhere to Law-with-a-capital-L is just too much hard work. Law-with-a-capital-L simply cannot exist in tandem where ignorantia legis persona is the norm.

And so it may be that the great American experiment is over. Finally subsumed as in so many other nation states that have come before, and will come after, to the Rule of – for lack of a better way to put it – Man.

For my part, I’ll keep fighting for, and with, the Constitution. But I can’t help but feel more and more like Don Quixote.