Asides: Problems with Masked Law Enforcement

Every now and then, I think it is important to diverge a bit from my usual family law topics. For many years before I practiced family law, I was an assistant public defender. Some of the experiences I had doing that work were relevant to current events, so I thought I would do a series of "Asides" to provide some education about some of the legal problems currently going on in the country.

Today's topic is the problem with law enforcement wearing masks and obscuring their name plates.

In order to understand some of the legal problems with it, you will first need to understand some of the bedrock concepts of criminal law.

As you likely know, the Fourth Amendment to the US constitution provides that people be free from unreasonable searches and seizures of their person and property. The purpose of this amendment was to prevent arbitrary government action. Philosophically, the amendment had its roots in ideas that people should enjoy privacy as a form of freedom. More practically, it was a way to curtail government agents from engaging in coercive or abusive tactics against regular people.

That sounds great, but without any mechanism to enforce it, it is simply aspirational.

Enter the exclusionary rule. This is a doctrine where in criminal prosecutions, evidence obtained illegally (read: in violation of the Fourth Amendment) cannot be used against the accused.

This puts some real teeth to the Fourth Amendment. Law enforcement's job is to enforce the law and hold criminals accountable. If they do so by breaking the law themselves, the evidence is excluded and the otherwise guilty party goes free - essentially demonstrating law enforcement's failure at their own job.

When evidence is excluded on constitutional grounds like this, what people often misunderstand is that there is a basic governmental principle here - we would rather watch a guilty man go free than tolerate illegal government overreach by allowing them to seize us or search our homes without legal authority.

When criminal defense lawyers ask for the exclusion of evidence, the goal is not to get some guilty person off the hook. The goal is the create what is called "general deterrence" - that is, making sure to consistently object to illegal obtained evidence so law enforcement knows someone is watching and consequences will be there. That is a very strong impetus to motivate law enforcement to actually abide by the Fourth Amendment. If people stop using it to attack illegal searches and seizures, the impetus weakens and, as a result, the Fourth Amendment itself weakens.

The theory of the exclusionary rule is simple. The practice isn't.

Let's say I have a client that tells me what law enforcement did and I determine it is illegal. In order to trigger the exclusionary rule, I have to prove that the illegal conduct happened to a judge. This involves something called "discovery" - the structured legal fact-finding process before you file motions or go to trial.

Even when law enforcement is clearly identified, this can be an uphill battle. If it is "he said, she said" with my client and law enforcement, many judges will lean towards believing law enforcement. I have to dig deep because law enforcement will rarely admit their illegal conduct in a report. I have to research the situation, talk to other witnesses who were there (including other officers) to get to the bottom of things.

If I know the name of the officer, I can pull other reports to see what they have done in the past. I can see if they have gotten in trouble before. I can see if evidence they have offered has been rejected before.

Enter the mask and badge problem.

If none of the law enforcement officers are in any way identifiable, my job enforcing the exclusionary rule (and thus protecting people from unreasonable searches and seizures) goes from difficult to nearly impossible. I am almost totally at the mercy of law enforcement to identify themselves after the fact.

Things like clear law enforcement identification, reports submitted under penalty of perjury, legal requirements of transparency (such as public records requests) all work towards enforcement of the Fourth Amendment.

Of course, the exclusionary rule is only the tip of the iceberg.

Law enforcement officers can also be sued for things like using excessive force and violating parties' civil rights. That form of legal accountability, like the exclusionary rule, is a vital deterrent to prevent government overreach. If you cannot identify the officers that used excessive force or otherwise violated your civil rights, it turns into that same "swearing contest" from above - your client's word versus various unnamed persons.

And that is to say nothing of the risk that non-officers impersonating law enforcement to perpetrate all kinds of different crimes.

The marginal increase increase in safety the officers enjoy from being anonymous (ostensibly being targeted if photographed their work) is, in my view, vastly outweighed by the risk to the people and the meaningful existence of constitutional rights.

Hopefully this bit of legal background helps you understand the issue so you can decide for yourself on how you feel about it.