In September 2012, two Delaware County, Ohio deputies and a State Highway Patrol trooper were charged after they failed to arrest a drunken man who spoke little English and left him at a Taco Bell. Not long afterward, the man was struck and killed by a vehicle. All three officers were charged under the Dereliction of Duty statute, which states, “No law enforcement officer shall negligently fail to prevent or halt the commission of an offense or to apprehend an offender, when it is in the law enforcement officer’s power to do so alone or with available assistance.” Based on the language of that statute, officer discretion ceases to exist. If you follow the logic of the prosecution, a police officer could be prosecuted for failing to stop a jaywalker who is then struck by a car. The responsibility and blame for the outcome is being misplaced. In a very similar 5th Circuit case alleging federal civil rights violations, police officers took plaintiff’s decedent out of a bar on a drunk and disorderly charge and when advised by the jail that the jail was full, the officers left him at a gas station five miles from his home, allegedly at the decedent’s insistence that he would call his wife. Half an hour later the decedent was struck and killed by a car on the highway. The court ruled the officers were not liable for failure to protect the decedent from private violence. Kovacic v. Villarreal, No. 10-40208 (5th Cir. 2010). Peculiar how law enforcement officers can be criminally liable for something the Federal court has opined is acceptable.

On Feb. 5, 2009, St. Charles County, Missouri sheriff’s deputy Christopher Hunt was searching for Phillip Alberternst, who was wanted for several felonies related to meth-making. Alberternst’s girlfriend called deputies advising she was in the residence with the fugitive who was asleep. Upon arrival, the girlfriend refused to cooperate and Hunt kicked in the door. Alberternst resisted arrest and jail intake staff noted a few scratches on Alberternst from the struggle. In October 2012, Hunt was convicted of felony burglary and sentenced to five years because he broke into the home and “assaulted” Alberternst. Rick Rosenfeld, a criminologist at the University of Missouri at St. Louis later stated, “I frankly have never heard of an officer being charged with breaking and entering – burglary – for entering a residence without a warrant.” In this case, St. Charles County officials support Hunt, is paying for his criminal defense and attempted to write a 10% check for his appeal bond, though the judge would not allow it. St. Charles County Sheriff Tom Neer continues to back Hunt and employ him in an administrative position even after his conviction. Here we are again with a criminal charge contrary to a Federal court’s opinion allowing such conduct. In Payton v. New York, 445 U.S. 571 (1980) the U.S. Supreme Court ruled officers may force entry into the home of the subject with an arrest warrant where they have reason to believe the subject of the warrant is home at the time. In Hunt’s case, news reports as to whether the home belong to Alberternst or his girlfriend differ. Accordingly, Steagald v. U.S., 451 U.S. 204 (1981) may apply, which held, absent exigency or consent, officers must obtain a search warrant before entering the home of a third party to make an arrest of a non-resident; an arrest warrant is insufficient. Therein lies the problem; it takes an officer going against the grain of what has been established in precedent for new case law to be established. It takes an officer doing what he thinks is right, often times in a split-second environment, and a prosecutor arguing the officer’s decision is a righteous one (not criminally charging him). This is the mentality needed to establish new case law that is practical given the fact-pattern established in the Alberternst case. But this is not the case – these officers are being criminally charged for going against the grain – conduct that has historically inspired great case law.

Many officers do not realize how case law is established within their respective federal circuit. Federal law provides that a three-judge panel be embodied so a majority decision can be determined, otherwise known as a “judicial panel.” However, each circuit court is not comprised of only these three judges; there are 282 judges covering all 13 federal appellate circuits (average of 22 judges per circuit). Both law enforcement officers and lawyers know opinions change when the slightest fact changes. Thus, it can be said that what a judicial panel has previously opined can be overruled by the same three judges or any of the possible 1,540 combination of judges forming a judicial panel from within the same circuit. And yet law enforcement officers are required to abide by the precedents established within their district and the U.S. Supreme Court or face civil liability under 42 U.S.C. § 1983, or as we now know, criminal liability.

When is the last time you received a legal update from your agency’s law department? We are expecting police officers to make legal decisions in a system that lawyers cannot keep up with. Worse yet, we are prosecuting officers when their actions are the slightest bit out of line with established precedent. With this prosecutorial culture, anything subjective in our line of work is open for prosecution. Conduct a Terry stop where the prosecutor argues reasonable suspicion ceased to exist and face possible unlawful restraint charges. Handcuff and transport a suspect based on probable cause that is later determined to be tainted and face possible kidnapping charges.

On May 4, 2009, the U.S. Supreme Court defined what the criminal element “knowingly” should be interpreted to signify in the case of Flores-Figueroa v. United States, 129 S. Ct. 1886 – 2009. The court held that ordinary English grammar suggests that the term “knowingly” applies to all of the statutory elements. The court rejected the government’s focus on what the words necessarily imply (that is – “John knowingly threw away the homework of his sister” does not necessarily imply that John knew the homework belonged to the sister) in favor of a test that looks at the words would ordinarily imply (that is -- that John knew whose homework it was). In criminal law, courts are typically required to apply the required mens rea to every element in a statute.

Taking Flores-Figueroa into consideration, are prosecutors establishing the required mens rea to criminally charge and convict law enforcement officers? The Washington state legislature addressed this very issue by requiring malice or an “evil intent” to offenses that other states would charge at the drop of a dime, even though an officer is thought to be acting within his or her scope of duties. I would submit the officers in the above cases “did their job.” The two cases I mention are just a sample of the dozens of cases I read about annually – the worst yet was the officer indicted for felony Theft of Office when she was talking on her mobile phone while patrolling (the prosecution claimed he stole government money when he used his time on the clock to talk on the phone). It is an unfortunate situation when officers are neither criminally nor civilly responsible under the facts of this case, but are criminally charged by prosecutors second-guessing decisions from an armchair. Regardless of the above cases, a malicious or “evil intent” needs to be a requirement for both criminal and civil cases, otherwise we are prohibiting our officers from doing what is righteous for fear they will be the next defendant; these prosecutorial indiscretions and meritless civil liability awards need to come to an end.