Another Court Says Law Enforcement Officers Don't Really Need To Know The Laws They're Enforcing

from the horseshoes,-hand-grenades,-and-fraud-investigations dept

The nation’s courts continue to ensure that the less you know as a law enforcement officer, the more leeway you’ll be granted. USA Today’s Brad Heath tweeted out a screenshot from a Medicare fraud case that shows ignorance of the law is no excuse… unless you’re in law enforcement.

The accused doctor sought to have the evidence suppressed [PDF] because the search warrant contained assertions that were false.

Dr. Barnes argues the affidavit erroneously states that a physician is required to meet a Medicare beneficiary in person before certifying that beneficiary for home healthcare services. According to Dr. Barnes, the applicable Medicare regulations allow this “face-to-face” requirement to be satisfied through a nurse practitioner or a physician assistant. Had the warrant affidavit contained a correct summary of the applicable law, Dr. Barnes argues the magistrate judge would not have found probable cause that Medicare fraud had been committed.

The court, however, found that errors of law are pretty much unchallengeable when it comes to warrant affidavits.

Franks does not apply to the alleged misstatement of law in this case and therefore does not preclude application of the good faith exception.

The question before the Court in Franks was whether a criminal defendant “ever ha[s] the right . . . to challenge the truthfulness of factual statements made in an affidavit supporting the warrant?” Dr. Barnes has not identified any cases extending Franks to misstatements of law. Instead, the Court’s research indicates the relevant inquiry is whether the warrant affidavit contains false statements of fact. That no other court has applied Franks to misstatements of law is a strong reason for declining to do so in this case.

Why can’t a defendant raise a Franks challenge alleging “misstatements of law?” Well, it’s because law enforcement officers — despite being charged with enforcing the law — are not required to know the details of the laws they’re enforcing.

As the Supreme Court recognized over 50 years ago, “affidavits for search warrants . . . . are normally drafted by nonlawyers in the midst and haste of a criminal investigation.”

Which leads to this [all emphasis mine]:

As an officer untrained in the law, S.A. Bradford cannot reasonably be expected to understand the nuances of the law, especially the “maze of Medicare regulations”—as Dr. Barnes described them—at issue in this case.

As for all the nonlawyers not employed by law enforcement agencies, they’re still on the hook for not knowing the nuances of the “maze of regulations” surrounding almost every business or service.

The Supreme Court gave law enforcement a “close enough” pass for traffic stops and detentions in its 2014 Heien decision, stating that officers can’t even be expected to know the narrow(er) set of laws pertinent to traffic enforcement. Here, another “good faith” pass is handed out, allowing officers specializing in certain investigations (like medical fraud) to have only a passing knowledge of the laws they’re using to arrest and prosecute people with.

As Scott Greenfield points out, the continued expansion of the “good faith” exception means it’s far more beneficial for law enforcement officers to remain ignorant of the law than it is to strive towards expertise.

The absurdity of the court’s rationale would be good for a party joke but for the fact that this is serious. Of course, it’s true that no federal agents (and for yuks, let’s add, because he’s a non-lawyer) could know every law and regulation. The reason this is funny is that no lawyer, no judge, no legislator, no one, knows every crime. No one has even been able to count how many exist, with best guesstimates at 35,000 federal crimes (including regulatory offenses), plus all the state, local, etc., crimes on top of that. The ridiculousness of it all is manifest, but that doesn’t mean ignorantia juris non excusa won’t land your butt in prison.

What this reflects isn’t sound legal doctrine, but a policy choice: that cops get a free pass and you don’t. The less they know, the broader their authority. The less they know, the more luxurious their baseless assumptions.*** The less they know, the more we forgive their errors.

The footnote:

***For example, “I didn’t know if that he wasn’t armed, so when he reached into his car to retrieve his driver’s license, after I commanded him to give me his driver’s license, I didn’t know if he had a weapon in the car, so I shot him.” The more you don’t know, the more you’re allowed to do.

The courts don’t expect law enforcement to be perfect, but they refuse to extend the same courtesy to the accused. The rationale for this double standard appears to be that law enforcement officers are on the side of good and must be indulged, while every accused citizen tends toward evil, even when it might not have been maliciousness that prompted the criminal act, but ignorance.

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Comments on “Another Court Says Law Enforcement Officers Don't Really Need To Know The Laws They're Enforcing”

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That One Guy (profile) says:

Ah hypocrisy and double standards...

If you break the law and claim in your defense that you didn’t know you were breaking the law and you don’t have a badge, then you still get the book thrown at you because ‘Ignorance of the law is no excuse’.

If you break the law and claim in your defense that you didn’t know you were breaking the law and you do have a badge then not only are you not punished but any results from your action is treated as completely legal, despite the violation of the laws and limits because of the ‘Good faith’ exception.

It would be nice if the courts at least pretended to care about justice and equal treatment under the law, rather than blatantly admitting, ‘Yeah, this group gets special treatment and doesn’t have to follow the rules, but if any of the rest of you break the rules we’ll bring the hammer down on you.’

Anonymous Coward says:

Re: Ah hypocrisy and double standards...

Whatever will probably defend the cops on this one, complaining about how the law is too complex, but then he would turn around and defend IP laws against normal citizens no matter how complex they are because the law is the law and more subtle and complex laws need to be enforced against a more ‘advanced’ and complex society.

Bergman (profile) says:

Re: Ah hypocrisy and double standards...

The thing is, private citizens are expected to learn the law well enough to avoid breaking it, by virtue of having graduated from mandatory schooling.

But police also have that level of education, plus training from a college or police academy on top of it. By any standard, while police are hardly trained to the standard of a lawyer in the law, they ARE more educated in it than a private citizen is.

How is it that they can get more latitude on knowledge of the law despite having more training, than people who have less knowledge?

Simple. Police who are accused of wrongdoing are treated as innocent until proven guilty — that’s what it looks like when someone is treated as innocent, prior to being proven guilty. That’s how it’s supposed to work — for everyone.

But the corruption of the legal system comes into play when ONLY police and other officials are treated as the law mandates everyone be treated. Non-officials are treated as guilty until proven innocent these days.

Anonymous Coward says:

Re: Re:

Nah, it’s all good, because:

As the Supreme Court recognized over 50 years ago, “affidavits for search warrants . . . . are normally drafted by nonlawyers in the midst and haste of a criminal investigation.”

You’ve watched TV, right? This happens all the time in police dramas. You have to get that warrant now, or the bad guys will get away with it!

Anonymous Anonymous Coward (profile) says:

They are no more, what now?

If they don’t know the law, then they cannot be enforcing the law, therefore they cannot be law enforcement. Stop calling them law enforcement. Call them the goon squad, the neo brown shirts, the kill team, the hit parade. They are fast becoming an uncontrolled killing machine, something we, and the constitution, don’t want.

Since we no longer have a law enforcement branch, should we consider getting rid of the rest of these Laissez-faire judicialists and start over?

Boojum (profile) says:

The requirements for knowledge of the law must apply equally to a city cop with a degree in law enforcement and a small town cop with a high school diploma. There are many small towns in the united states where there is no advanced degree requirement for a police officer. I think this is a situation where the burden is on the court to determine if the statements of law in a warrant are accurate. They certainly do that during trials, so it would be a logical extension of their workload.

Anonymous Coward says:

Re: Re:

All judges are required to know the law they are deliberating on. If they are asked to sign a warrant, they are deliberating on the law covered by that warrant. If the warrant is bogus, they are the ones responsible for rejecting it, helping the officer modify it so that it is acceptable, or accepting the warrant and then being held liable for any misstatements based on the law (not misstatements based on the application).

Shouldn’t this be correct?

Anonymous Coward says:

Re: Re: Re:

Like everything else instructed by mankind. Slowly over time, the institution is slowly corrupted to the point where Judges are nothing other than puppets designed to keep the machine of INjustice oiled so that the necessary people can be put away when they need them gone!

The law is so corrupted that it no longer even serves its purpose.

Zengief says:

Devils Advocate

How would you fix this? We can all basically agree that no one person can know every law. Should people be let off the hook for saying that they didn’t know the law. It is very possible that the person had good intentions, but broke some law in the process. Should intention be the deciding factor? It could be that the person did not have good intentions, but lies about their knowledge of the law. How would you decide what their knowledge of the law is? You can not force them to testify.

Let’s go the other way. In this situation, should a lawyer have drafted the warrant? Which warrants should require it? We have already mentioned above that there are more laws than any one person can know. How many people should be involved in each warrant served? Or in the 2014 Heinen Decision, how many officers and lawyers should be involved in each traffic citation?

The third option would be to reduce the number of laws to a more manageable amount. Which laws should we get rid of? The ones that are in the story above deal with medical care. Should those be cut first?

It isn’t a good situation, and it is easy to complain about, but the solutions are not readily apparent either.

Anonymous Anonymous Coward (profile) says:

Re: Devils Advocate

Here are a few possibilities:

One item per bill, or line item veto

Sunset all laws every 7 years, keep legislators busy refining laws rather than creating new unneeded ones.

Prohibit congresscritters from revising and extending their comments for the record so they cannot be ‘on the record’ for something they never said on the floor.

Campaign finance reform, government pays for all elections

Stop electing judges, find a way to remove ‘life’ judges for cause.

Eliminate paid for lobbying.

Remove money from politics, no soft money advertising, hard money advertising from government financed election campaigns only.


Anonymous Coward says:

Re: Devils Advocate

How about we restrict the Good Faith Exception for search warrants to apply only when the officer and the judge each testify, under oath, that he/she reasonably believed:
– he/she had received documented training sufficient to understand the law in question OR
– exigent circumstances precluded obtaining an expert opinion

That would allow defendants to challenge bogus affidavits, but would not specifically require the officers to consult a lawyer every time they needed to do anything. Point #1 could be challenged on the basis that, if the law in question is not straightforward, then the officer must have had some form of training. Here, the court specifically assumes the officer was not adequately trained, on the basis that had he been trained, he would have known not to write what he did. That lack of training would invalidate the affidavit under point #1, unless salvaged by point #2. Alternately, if the officer had been trained, and still wrote the affidavit in this way, evidence could be suppressed on the basis that the officer demonstrably had not understood the law, because an officer who had been successfully trained would not write the affidavit that way. (This roundabout reasoning deliberately mirrors the extant roundabout “knowingly filing a false report” semantics, where reports cannot be filed accidentally, so filing one is evidence of knowingly filing, and writers are presumed to know how to write the report correctly, so filing an incorrect report is inherently a violation, even if accidental.)

For point #2: obtaining a search warrant for a white collar crime, absent a reasonable belief that destruction of evidence was imminent, would be presumed not to be exigent, and so could not be invoked to excuse the lack of training. The seized material would then be suppressed.

Anonymous Anonymous Coward (profile) says:

Re: Re: Devils Advocate

Sounds like a lot of wiggle room. Why NOT train the officers and then hold them accountable? Is there something inherently wrong with holding them accountable? Lawyers need to know stuff. Starbucks baristas need to know stuff. Chemists need to know stuff. Ditch diggers need to know stuff, maybe less than others but knowing about finding out where underground lines might be place could save their lives. Just what is wrong with the police knowing their local laws, the constitution and its inherent issues, and when and where exceptions might be made.

In addition, I think it should be axiomatic that qualified immunity should be dramatically constrained in terms of what qualifies and what does not qualify with a strong emphasis on not qualified as the primary determination and the onus upon the applicant for immunity to prove, beyond a reasonable doubt, that immunity should apply. Yes, that is hard on the applicant. And so it should be.

Pseudonym says:

Re: Re: Devils Advocate

I think we all understand the kind of mistake which a reasonable person would let pass. So I suggest the following test. A warrant which misstates the law is still legal if both of these conditions are satisfied:

1. Any misstatement of law must be minor. I’m not sure how you define “minor”.
2. The warrant would still have been granted had the law not been misstated.

Condition 2 is the important one which may have thrown out this warrant. Condition 1 is just there to ensure that you can’t just write down any old thing; you actually need some expertise in the law that you’re trying to uphold.

Anonymous Coward says:

Re: Devils Advocate

“How would you fix this?”

Um, shoot the offending LEO in “good faith” before he violates my Constitutional rights? Argue in my defense that he/she had a gun and other weapons and was threatening illegally, under color of law to force me to yield my [pick a Bill of Rights Amendment here] rights. I was in fear for my well-being/life.

But maybe that’s just me.

Anonymous Coward says:

Might be seen as controversial, but here is hoping people can claim ignorance of the effect a gun will have on dirty cops, as a valid defence when forced to defend themselves against such criminals.

Since the system has shown it prefers to reward criminal behaviour by badge wielding goose stepping thugs. The citizenry will have to protect themselves.

Paul Brinker (profile) says:

The Law is unknowable

The law is so poorly written, with definitions that change from the common sense versions, to situations that require appeals courts to fix already, that no person could know the law if they wanted to.

The standard needs to change from “ignorance” to “Reasonably”, as in a reasonable person in your position should know the law for the infraction you committed, or at least known that the action could be illegal based on publicly available information. This way people in banking will know about insider trading, but should not be required to know that a type of fish sold in clear plastic bags are illegal in California.

This kind of standard helps the common man get around the state throwing insane laws at people while expecting people to know the law of there domain. It would also prevent secret laws.

Anonymous Anonymous Coward (profile) says:

Re: The Law is unknowable

I like your thought process, but there are things a police officer should absolutely know, local traffic laws, requirements for a search, reasonable force, etc., and there should be no equivocation about those. That a cop in Virginia should know about California fish laws would be ridiculous, as you point out. But there needs to be a hard line between what they absolutely aught to know and what they might need to know, and that line should be extensive and constitution oriented. If podunk wherever needs to further educate their officers, so be it. Give them six months and then hold them absolutely accountable.

Secret laws should be unconstitutional and not need a court review to make any such determination. If it is secret it is by definition unknowable and therefore unenforceable, by anyone.

That Anonymous Coward (profile) says:

Because police only go after “Bad People ™” so they MUST have done something. The system works best when we allow them to guess it must be illegal and disrupt the “Bad People’s ™” lives because when we get to court we can sort it all out and no harm no foul. We can put the genie back into the bottle after the police give multiple press conference making allegations found completely without merit at trial.

I mean its not like they’ve gone after suspected “Bad People ™” and not found the evidence they claimed was there and then kept the data they took for years so they could look for anything that might be illegal…. oh wait…

Perhaps just maybe it is time to demand that all of the players in the game are actually treated equally, that I didn’t know it was illegal shouldn’t fly on either side and those who pull the trigger to quickly not get a pass because of a hunk of metal on their chest.

Anonymous Coward says:

Honerstly folks there is a siomple way to fix this...

Apply the biblical principle of “an eye for an eye”. And before any of you go off the deep end, go and actually read the principle first and you will see that it is very appropriate in this case. It will affect how judges and prosecutors and LEO’s do their jobs. As they have the most to lose from the application of the principle.

Whatever says:

Reasonable assertions versus absolute fact.

I love stories like this on Techdirt, because it shows a sort binary absolute or nothing mentality that makes so little sense, it’s hard to grasp at time – except perhaps to laugh at.

Where to start? Let’s see: The “beyond a reasonable doubt” standard applies to conviction, and nothing else. Warrants are held to that standard. Warrants are generally based on information, clues, information, and even suspicions raised during an investigation. Beyond a reasonable doubt is something decided in a court of law.

Moreover, a warrant is sworn by a police officer, not by a supreme court judge. They are there to enforce the laws to the best of their ability, not with absolute certainty. That certainty in the law is ultimately the responsibility of the supreme court, not a police officer.

Police officers are not like referee in a sporting event. They don’t have absolute power and their decisions are not final. They are but a cog in a complex legal machine, and there is no certainty that they will be as knowledgeable of all of the nuances of the law. The law is an ever changing, ever flexing system based not only on the written words, but on the judgement made in the courts – a concept that Techdirt celebrates every time something goes your way. Should all police officers be aware of all jurisprudence at all times, spending a big part of their day studying the implications of each court ruling as it happens? Or should they be investigating cases and applying the law as best they can under the circumstances?

The courts ruling perfectly expresses the reality that not every part of the legal system is 100% knowledgeable of all of the parts of every law at all times. The contents of a warrant may not be absolutely perfect, but are sworn to be the best the agents knowledge at the time. That is the requirement, and nothing more.

Was this warrant inaccurate? Yes, but the agents did they best with what they knew, and nothing more. We cannot expect more without greatly changing the basis of the legal system.

Anonymous Coward says:

typical attitude of USA judges. has no one noticed how the courts are aiding law enforcement so as to make the USA even more of a Police State? it wont be long before we have to have permission to step outside our front door! it would sure be interesting to know who is really behind all this shit! he/she must be so paranoid it’s unbelievable!!

David says:

Re: "Good faith", "National Security", "Because I said so."

That is the representation of the good of the people. That’s why no rules for reining it in are required or heeded. Rules are for keeping the bad guys in check, not the good ones.

Shhhhhh, shhhh, wanny buy some faith? It’s real good, you know. Wouldn’t want to be caught with bad faith, would you?

Uriel-238 (profile) says:

Re: Re: Ours is an adversarial system.

…or at least it’s supposed to be. Law enforcement without sufficient oversight or advocacy for the people really just becomes a brute squad by which officials force their will on non-officials (the rest of us).

Which is how they behave now. They can claim all they want that they’re doing it for our own good but without any checks there’s nothing to indicate that they’re not just shaking down commoners like racketeers.

Hence civil forfeiture looking a lot like highway robbery.

A system in which the state represents both sides is called an inquisitional system. They tend to not be interested in the preservation of individual rights, and we have historical incidents by which inquisitions have been given a bad name.

Much like tyrants and despots.

Anonymous Coward says:

Ok then, i guess ignorance of the law IS an excuse then

Offcourse they are simply admitting that there are so many laws that its not feasable for anyone to know them all at one time………that should bloody tell them there are to many damn stupid laws for to many damn stupid things……stupid being a generous term in some circumstances

Publius says:

Cops Knowing the Laws

The Court saying law enforcement need not know the laws they are enforcing amounts to fraud upon the court. All judge’s in this country are charged with the duty to protect from such abuses, over reaches and oppressions.
See Virginia Bill of Rights, Also look for American Jurisprudence, Book 16, you may learn so much it will shock you.

Anonymous Coward says:

Re: Re:

people that know their constitutional rights are domestic terrorists didn’t you get the memo? A good lawful citizen only believes what their government tells them to believe. They only hear what they are to hear and only see what they are told to see.

Free thought is terrorism according to those running America.

charkee says:

cops knowing the law.

Since courts are all about money, arrest them and let the courts and 10s of $1000s or hundreds of $1000s of dollars later decide if the arrest was justified or not.

It all makes sense to me.

They don’t care about truth nor justice, truth is but an annoyance that gets in the way of making more money.

They don’t care that they will cause you to lose your job and cause your family to be homeless, even if you are found innocent; you still lose.

Justin Case says:


I would never find anyone guilty in a court of law of a crime that did not violate the natural rights of another human being. Any and all issues beyond that I would find the person not guilty regardless of the crime and evidence. The US government and it’s employees should not be allowed to profit on the backs of the people.

Wyrm (profile) says:

Proposed fix...

First, is this “good faith exception” even a law? If not, it’s only a bad precedent established years ago that should be rescinded ASAP.

Second, to make it clear, an actual law should be passed to codify it. Something – at federal level so it applies to anyone, that states something in the line of:
– misstatement of law shall lead to the actions taken based on it (warrant, search, arrest, etc.) to be considered invalid. (Reparations might be in order in at least some cases.)
– the agent (cop, federal investigator, judge, etc.) Who originated the misstatement can be prosecuted into an indefinite leave without pay.
– the agent can argue “good faith” as a defense.
– the agent can undergo training to resume his functions.

With this, in no case would “good faith” save illegally obtained evidence. It would only be a way for agents of the law to defend themselves, period.

This fix should encourage everyone involved to learn enough of the law – the very law they are “enforcing” – to keep their cases alive.

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