Judges, Politics and Resisting Arrest

What an editorial by the Baltimore Sun last week, which actually called out a judge by name. I’d gotten used to the old editors who would have been worried about interfering with judicial “independence.” No doubt the Sun will be accused--wrongly-- of doing exactly that.

Kelli Oliver and Talaya Kirkland verbally abused a police officer who stopped their car for a broken tail light and reportedly made a scene that caused traffic to stop. When the officer tried to arrest them for disorderly conduct, Kelli Oliver kicked and bit the officer.

For this they were found not guilty by Baltimore County Judge Dorothy Wilson, who found their behavior legally justifiable. The Sun did a great job of explaining the law and why it believed that Wilson fell down on the job. And it clearly felt the ruling smelled of politics, since the two defendants were the daughter and granddaughter of Baltimore County Councilman Kenneth Oliver.

I didn’t see the trial myself. But I am quite familiar with political verdicts. Had anyone asked me in advance what I thought the verdict would be, I would have said not guilty, regardless of the judge, and based solely upon the nature of the charges and the defendants’ family connection. It happens all the time.

Once as a young prosecutor a police sergeant confronted me about why my team had dropped a case. I learned that my co-worker had done it in response to a call from the front office. The defendant, the husband of the secretary to the Baltimore County executive, had been arrested for soliciting a prostitute and “they” didn’t want his wife to find out.

I was so mad I called my boss and told her that if the front office wanted to drop a case for political reasons they could come down and do it themselves. Youthful, righteous, naive indignation. A few years later when I told this story to others in front of this co-worker he chuckled, informing me that he had dropped a second case after a call from the front office.

“You did?” I asked incredulously.

“I’m a loyal foot soldier,” he replied.

Not long afterward the co-worker came into my office and stared out of the window, feeling rather badly about a plea he had just taken. A man of Greek descent had sexually molested a child, and some politically influential members of the Greek community had called the state’s attorney, who in turn asked his loyal foot soldier whether “anything could be done” with the case. The loyal prosecutor used his discretion to plead it out to probation.

But despite his momentary remorse, the foot soldier’s political instincts had its rewards. He’s now a judge.

Then there was the prosecutor assigned to a court created to plea bargain cases to keep them from going from the District to the Circuit Court. She called me to say that she couldn’t stomach the plea agreements that the judge was offering. When I sympathetically told her that all she could do was make the state’s recommendation clear on the record, I heard silence on the other end of the phone.

“You are putting the state’s position on the record, aren’t you?” I said.

“You know what I want to be,” she replied.

Yes, I did. She, too, is now a judge.

Despite Attorney General Doug Gansler’s campaign to end the election of Circuit Court judges in Maryland, it won’t kick politics out of the judiciary. District Court judges like my two former colleagues aren’t elected, but they “play the game” which includes currying favor with politicians and prominent lawyers who recommend them for their judgeships. This results in too many judges who lack the guts to make independent decisions that negatively impact influential people. They continue to be politically sensitive.

Judges are human beings like the rest of us. They need the same scrutiny anyone else in public service should get. I applaud the Sun for taking a look at Judge Wilson’s decision, and hope they will keep it up.

A New View of Resisting Arrest?

It would be hard to imagine Judge Wilson allowing police officers to bite and kick citizens in the course of making a legal arrest. We’d call that police brutality. But she said it was okay for citizens to do it when police officers did not have grounds for arrest. Not only did she invite others to question her motives with this decision, she opened a can of legal and practical concerns.

An “illegal” arrest is in the eye of the beholder. A police officer may be making an arrest in good faith. A citizen may legitimately think the arrest is illegal. No one knows until they get to court, where different judges may rule differently. It's really just a crapshoot as to whether its justifiable. Should we permit violence under these circumstances?

There’s also a disparity within the law. A citizen has a common law (historical) right to reasonably resist an illegal arrest. But he does not have a similar right to resist an illegal stop. (A stop is a temporary detention by police.) Why not? That’s just the way the law developed over the years, because a “stop” was a concept invented by the Supreme Court and not rooted in common law. We can't expect the ordinary citizen to know the difference, and there's no valid rationale for the difference to exist.

And practically speaking, what is “reasonable” for a citizen to do in resisting an illegal arrest? Citizens can’t use deadly force. But Judge Wilson says they can bite and kick the police. Suppose the kick is to the groin, or the jaw, or the bite takes off part of an ear, a la Mike Tyson. Would that be okay, and would it matter if the injury was inflicted intentionally or unintentionally (as if we would ever know for sure)? That's a heck of a decision to leave to judges, and doesn't say much about how our country has evolved. We are not still fighting the King's men.

Then there's the problem of escalating force, from police officers making an arrest in good faith, to the rogue cop itching for an excuse for violence, to the citizen matching blow for blow. And what is a bystander to do in seeing a citizen grappling with a police officer? Does he have to know if the arrest is legal or illegal to lend aid?

Although I’m not a fan of reacting to every issue with new laws, legislators may want to take a look at this situation. It may be safer for all involved not to permit a citizen to resist arrest, whether the arrest is legal or illegal, and confine the remedy for an illegal arrest to a civil lawsuit. The lawsuit's coming anyway.