Guilt by association and retconning reality

[This is going to be a lengthy post, so bear with me, but you must read it in its entirety. This has tremendous implications for those who are concerned about the imbalance of power in our society, especially when it comes to the ever-increasing encroachment of the government into our civil liberties and the already alarming abuse of power against minorities.]

I’m going to posit two scenarios. First, imagine you are walking down a public street with your friend. You’re both on your way to the local grocery store to buy some hummus. The police pull up, take a look at you friend and mistakenly believe that he’s a notorious wanted criminal. They order him to stop. You, not wanting to be caught up in this police business, keep walking, but they order you to stop, even though they don’t know you, don’t suspect you and you haven’t done anything wrong. You have rights, dammit and you know the Fourth Amendment. Can they stop you and force you to give up your freedom?

The second is this: what I’ve just described above is a version of the events that transpired. They’re “facts” in a sense that they’re your recitation of the events. But that’s obviously not good enough, right? There is another version – that of the police officers. So who gets to decide which is the “truth”? Which is believable and accurate and should be relied upon? Because – and this is critical – the law is entirely fact-dependent. How the law applies depends on the nuances of the factual scenarios. And that is left entirely up to the trial judge: the judge that hears the evidence from you and the police officers and then decides what “actually” happened. That’s called fact-finding and will only be overturned if “clearly erroneous”. Meaning almost never. There is a deified deference paid to the trial court’s “findings of fact”.

This is all important, as you will see in a second, because the Connecticut Supreme Court yesterday [PDF] in State v. Jeremy Kelly, in its ever expanding love-affair with convictions and a not-so-shocking-anymore disregard for Constitutional protections, engaged in some blatant retconning of “factual findings” with the help of the trial judge to ensure that the “facts” supported their interpretation which supported a conviction.

But first:

You can now be legally detained/seized/stopped on a street by police even if they have absolutely no reason to stop you.

As I wrote in my preview post and then the argument recap post, the police and the prosecution in the State of Connecticut were seeking extraordinary authority to detain/seize anyone lawfully walking down the street in a public place in Connecticut, if they believed that people in the vicinity may have committed a crime. One of the bulwarks of the Fourth Amendment protection is that the police need something called particularized suspicion, meaning that they need to have some evidence to believe that you have committed a crime in order to stop you.

This opinion does away with that. In fact, the police don’t even have to be correct about the person in your vicinity they are seeking to stop. In Kelly, the opinion at issue, they had the wrong guy they wanted to stop. In other words, they completely botched their job and as a result, we’ve all lost our ability to freely walk down the street without being forced to submit to police authority for no reason at all.

In some other countries, we call that martial law. In America, we call that officer safety.

I would encourage you to read the masterful dissent [PDF] that lays waste to all the majority’s purported “reasoning”. Here’s a sample:

I agree with the majority that the police have a legitimate interest in protecting themselves. There must be, however, some restrictions placed on the intent. In my view, there are several potential unconscionable ramifications to the majority opinion. For instance, if a suspect with an outstanding warrant is talking to his neighbor’s family near the property line, can the police now detain the entire family as part of the encounter with the suspect? If the suspect is waiting at a bus stop with six other strangers, can they all be detained? If the same suspect is observed leaving a house and stopped in the front yard, can the police now seize everyone in the house to ensure that no one will shoot them while they question the suspect? What if the suspect is detained in a neighborhood known to have a high incident of crime, can the police now seize everyone in the entire neighborhood to ensure their safety while they detain the suspect? There simply is no definition of who is a ‘‘companion’’ in the majority opinion. I would  require more than mere ‘‘guilt by association.’’ Ever mindful of Franklin’s admonition, we cannot use the omnipresent specter of safety as a guise to authorize government intrusion. Therefore, I respectfully dissent.

Oceania has always been at war with Eastasia

What problem is?

What problem is?

As mentioned above, one of the chief conceits in the legal system is that facts exist not as they are, but as a judge or jury finds them to be. This has great value in the way our system operates because it defines a universe according to rules of evidence and the primary goal is to ensure reliability.

In recent months, the Connecticut Supreme Court has shown a greater willingness, on appeal, to consider legal arguments that were not raised before. While this has raised some hackles, I generally view it as a good move.

Never before, in my opinion, however, has the Court engaged in retroactive fact-finding. So here’s the setup from the majority opinion:

The defendant next claims that the Appellate Court incorrectly concluded that the trial court properly had found that Detective Rivera and Lieutenant Angeles were justified in detaining the defendant because they had a reasonable concern for their safety. In support of this claim, the defendant asserts that the trial court’s conclusion was based on clearly erroneous factual findings and, further, that the Appellate Court ignored those erroneous findings and improperly upheld the trial court’s ruling on the basis of facts that the trial court never found.

In other words, the trial court, in finding the need for officer safety, relied on clearly erroneous fact A and then, the Appellate Court ignored the trial court’s error as to fact A and instead said that the trial court was correct because of fact B. The trial court had never explicitly considered fact B.

You will have guessed by now that both fact A and fact B support a conviction.

In support of the finding of officer safety, the trial judge found that the guy the police were looking for (who, of course, was neither of the guys stopped) had a felony warrant for possession of a firearm, and that’s it.

The Appellate Court found that the stop was justified because of the felony warrant for a firearm and credible evidence that the guy they were looking for was armed and dangerous, a fact omitted by the trial court.

The Supreme Court had to agree that the “felony possession of a firearm” factual finding was clearly erroneous because no witness testified as to those words. It was, in fact, a warrant for a violation of probation.

But here’s where it gets weird. After the case was argued in the Supreme Court, they send a letter to the trial judge and asked:

  1. Did you mean felony warrant for violation of probation?

  2. Did you consider the evidence that they received a tip that the guy was armed and dangerous?

The answers, of course, to both were yes, despite there being absolutely no evidence of that in the trial court’s ruling.

It is certainly very curious that the Supreme Court would take the extraordinary step of clarifying “factual findings” by the trial court in an effort to support the conviction, when the clear record below – the words said by the judge in open court – would support a reversal.

This is highly unusual and should trouble everyone. I’m not assuming that there was anything malicious about it – that would be ridiculous – but even with a benign intent to “get to the truth” or whatever you want to call it, giving a trial judge an opportunity to change his responses in order to conform them to what the Supreme Court is clearly looking for really undermines faith in the process and the system.

Where does it stop? Are facts only facts as long as they’re convenient? Are rights only rights as long as they don’t get in the way of governmental authority?

Oh, right.

Oceania has always been at war with Eastasia.

15 thoughts on “Guilt by association and retconning reality

  1. nidefatt

    Well, your state does seem to have a weird thing about guns.
    This reminds me of opinions on the use of searchlights mounted on police vehicles not causing seizures because of officer safety. So now what started as an excuse to wander through a house looking at everything has become the reason you can shine a bright light into a car for no reason or seize the companion of a guy you’ve been told is armed.

    And what is up with the part of the opinion where the court says the defendant did not seriously contend his Fourth Amendment rights were violated?

  2. Jay Wolman

    What are your thoughts on the majority’s response to the dissent:
    In other words, the police must reasonably believe that the person is accompanying the suspect. Because the police must abide by this reasonableness standard, the dissent’s concern that our decision might somehow authorize the police to detain one or more persons merely because of their proximity to the suspect, and without regard to whether the facts give rise to the justified belief that any such person or persons were accompanying the suspect, is unfounded.

    1. Gideon Post author

      I think the problem is that they don’t define companion. And what is the basis for “reasonably believing” that? If we’re standing together but we don’t know each other is that a reasonable belief? What if I ask you the time and they see us talking? Is that reasonable? Is it reasonable if we’re both minorities walking down the street in proximity? That’s the problem. It’s a bullshit standard that opens the door to everything.

  3. John Campbell

    Well, as to the issue of fact, the judge clearly mis-stated based on a faulty recollection or faulty understanding of the testimony, but the practical implications are meaningless, and actually make a stronger case FOR the government when stated correctly. That is, a warrant for unlawful possession of a F/A does not logically lead to a conclusion of possession in the here and now, whereas the tip from a reliable informant is a strong indicator of current conduct. The issue is not much different than if the judge had confused Tuesday and Thursday when reciting the facts derived from testimony.
    Next, the dissent did – as noted in the opinion – assume that the cops would have searched the defendant if he had submitted to their demands to stop (and not immediately fled instead). While one might guess that to be true, there is nothing which justifies that conclusion. The cops said they only sought to have the defendant stand still and remain in their sight while they confronted the supposed armed and dangerous companion. You may choose not to believe them, but since the defendant decided to run away instead, I guess we’ll never know what ultimately they might have done.
    And finally, even thought the defendant concedes that he has no argument under 4A grounds since he voluntarily tossed the dope before he was actually seized, the dissent tried to bootstrap the state issues based entirely on Federal constitutional law which derives from dissimilar circumstances.

  4. REvers

    We need to adjust our labeling for this type of thing. It’s not officer safety. It’s officer cowardice.

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