Email Ken Stallings   Equal Protection Under the Law

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Equal protection under the law is not a quaint phrase tossed around lightly.  It is an inalienable Constitutional liberty expressed in the Fourteenth Amendment.  Vitally, there is no legal concept where Constitutional rights are subject to a mass violence test, where if a risk of public riots are present, then those liberties can be nullified.  Given that truth, here is what the Fourteenth Amendment says:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."

This amendment served as the bedrock of several US Supreme Court decisions, which ruled against the government in several cases where the Justices concluded that laws were capriciously enforced, often enforced along racial or gender lines.  It was enough in the history of the Supreme Court that if any law was shown to be enforced unequally, then it no longer enjoyed the protection of the Constitution's mandate of due process of law.

This week, two legal decisions were made in cases that were nearly the exact same in terms of the actions taken, and yet, despite both actions happening within the jurisdiction of the Constitution, each action received vastly different legal treatment.

The Department of Justice publicly announced that the Capitol Hill Police lieutenant who shot an unarmed Ashli Babbitt will not be prosecuted for that shooting.  In its announcement, the DOJ stated, "officials determined that there is insufficient evidence to support a criminal prosecution."

Nearly the same day, the Minnesota Attorney General charged police officer Kim Potter with manslaughter and ordered her arrest.  Potter shot fugitive Daunte Wright, in an action in which her own body camera recorded her yelling, "Taser, Taser, Taser," and reacting with shock when instead of firing a taser dart, she fired a bullet into Wright, which killed him shortly after he attempted to flee arrest in his car.  Wright was being arrested after police learned that he was subject to a warrant for fleeing a prior arrest attempt on an illegal gun possession charge.  So, Wright had twice used physical force to resist arrest by uniformed police officers.  Babbitt did not resist arrest.  Instead, she violated orders given by a police officer to advance no further past a barricade.

The state AG made this charge against Potter less than a week after the shooting.  The DOJ announced their decision not to charge the other officer after over three months of investigation.  Clearly, one legal response happened almost instantly, while the other went through extensive legal review.

Again, Babbitt was not violently resisting arrest, though she did violate police orders to remain outside the doors leading to the Speaker of the House's inner work area.  Wright was a fugitive from justice, wanted on a weapons charge, who had previously fled from police, and for a second time physically fought uniformed police officers who were trying to arrest him.  Wright's attempt to flee in his vehicle would have justified the use of a taser to prevent his escape.  Shooting an unarmed Ashli Babbitt appears questionable.

It seems clear that there are two vastly different legal standards now at work.  These two standards are fueled by racial considerations, and not a small amount of fear of public reaction to the actions; one where the shooting of black citizens have caused violent riots, and the other actions, where a white citizen was shot, causing no violent riots.

Previous incidents are on record of police accidentally reaching for what they thought was their taser, but instead grabbing their pistol, and then vice tasering a suspect, shooting the suspect.  In these prior cases, no charges were brought against the officers.  In each prior case, the evidence supported the conclusion that the officers made an honest mistake, and the blame for the outcome was placed on the fugitive who chose to resist arrest.

Those days appear over, but not entirely.

There seems to be a racial component at work today.  If a cop shoots a black suspect, then charges seem inevitable, and in this latest example against officer Kim Potter, well before any comprehensive investigation of the actions could have happened.  If a cop shoots a white suspect, charges are unlikely, and the decision made only after a thorough review of all the evidence.  One should also note that Kim Potter's identity has been flashed across the world, and she has already received multiple death threats, while the lieutenant who shot Ashli Babbitt has remained unidentified for over three months.  Both officers' conduct was video recorded, and can be reviewed by the public, who can reach their own individual conclusions.  Such review shows an undeniable commonality, and yet vastly different legal reactions.  Such unequal treatments have been sanctioned by the Supreme Court.

In the Supreme Court case of Skinner v Oklahoma in 1942, the majority opinion wrote, "When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment."

Oklahoma had passed a forced sterilization penalty clause in its state laws, to be applied to anyone who had been convicted three or more times of crimes "amounting to felonies involving moral turpitude."  This made the forced sterilization punishment one that could be applied to a wide number of felony convictions.  However, the law ran afoul of the equal protection clause, as it exempted many so-called white collar crimes.  The punishment was rendered only twice in history, the first time to a man who escaped from prison before the punishment could be carried out.  The second person so sentenced was Jack Skinner, who was convicted once for stealing chickens, and three times for armed robbery.  After his fourth conviction, the jury invoked the sterilization penalty.

Justice William O. Douglas wrote, "Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks.  The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn."

If the decision to charge police officers for manslaughter or murder, vice declining to press any criminal charges, becomes primarily a demonstrated matter of the race of the victim and/or the race of the police officer, then the two criminal charges would fit the same formula for violation of the Fourteenth Amendment.  In such a reality, the courts would have little choice but to render those state laws un-Constitutional until such time as the states stopped applying a racial litmus test to the prosecutions.

In these two cases announced this week, we have a clearly established commonality.  Two police officers shot a suspect dead.  One officer announced a warning for no citizen to advance past a police barricade.  He shot the first person who violated that order, even though that person was unarmed and physically threatened no one.  The other officer tried to taser a suspect trying for a second time to violently resist and flee police officers trying to arrest him on a felony weapons charge, but accidentally shot him instead.

Manslaughter or murder requires that a suspect demonstrate an intent to kill, through deliberate act, or through sanctionable conduct.  A person who drives drunk and kills someone is normally charged with manslaughter.  The act to kill may not itself had been deliberate, but the act to drive drunk was a deliberate act that demonstrated a wanton disregard for life.  The Minnesota police officer would not have been charged with a crime for using a taser on a suspect who physically resisted arrest and then tried to flee in his own vehicle.

It seems clear that there are two vastly different legal standards now at work.  These two standards are fueled by racial considerations, and not a small amount of fear of public reaction to the actions; one where the shooting of black citizens have caused violent riots, and the other actions, where a white citizen was shot, causing no violent riots.

Those who work in law enforcement and our justice system must show courage to apply the laws equally.  We've all seen the scenes of law enforcement officers standing up to a mob trying to subject a citizen to lynch mob justice.  We honor people who put their lives on the line to enforce the law with equal protection for all.  We rightly condemn those in our justice system who cower to the mob, and use that fear as justification to criminally charge in situations where, absent the risk of riots and social violence, no such charges would be filed.

Regardless of the threat of such violence, the Fourteenth Amendment still stands, and cowardice to equally enforce the laws remains just grounds to toss such unfair convictions, and ultimately put the laws themselves at risk of nullification if the unequal enforcements continue.

-- Ken Stallings

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