The Equal Protection Clause is part of the Fourteenth Amendment to the United States Constitution.
The clause, which took effect in 1868, provides that no state shall deny to any person within its jurisdiction “the equal protection of the laws”.
A primary motivation for this clause was to validate and perpetuate the equality provisions contained in the Civil Rights Act of 1866, which guaranteed that all people would have rights equal to those of white citizens.
As a whole, the Fourteenth Amendment marked a large shift in American constitutionalism, by applying substantially more constitutional restrictions against the states than had applied before the Civil War.
The meaning of the Equal Protection Clause has been the subject of much debate, and inspired the well-known phrase;
This clause was the basis for Brown v. Board of Education (1954), the Supreme Court decision that helped to dismantle racial segregation, and also the basis for many other decisions rejecting discrimination against people belonging to various groups.
The Equal Protection Clause itself applies only to state governments.
However, the (Supreme Court) held in “Bolling v. Sharpe” (1954) that equal protection requirements “apply to the federal government” through the (Due Process Clause) of the “Fifth Amendment.”
Thus, holding the of foregoing “facts” in your mind and close to your heart, let’s move on to examine the law as it pertains to knowing the law?
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…
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…
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.
Question: How many of you reading my blather so far, still believe that you have equal protection under the law when those we hire to enforce the law are exempt from it?
Truth sometimes turns your stomach, I’ll be back tomorrow