We're heading into Thanksgiving Week. So how better to end the previous week than with an interesting Friday afternoon opinion by Justice Robie.
I'm tempted to respond to the opinion on one of two different levels. First, on the practical side, Justice Robie holds -- and this is somewhat important, or at least interesting -- that you're apparently allowed in California to walk in the middle of the road, at least inside a residential or business district. I didn't know that; indeed, I'd have intuited the contrary if you'd have asked me what the law probably was. Moreover, the municipal codes of several cities facially prevent such conduct, and Justice Robie concludes -- correctly, I'm sure -- that such ordinances are preempted.
Which is cool. I may celebrate this weekend by walking down the middle of the road. If only to see what happens. (Were this blog suddenly to cease publication after today, you in turn could probably intuit the likely result.)
What I like about this holding is twofold. First, what's the interaction between this holding and jaywalking statutes? Is it okay to walk in the middle of the road, but not to cross the road except on the corner? This seems strange, but if that's what the law says, okay, I guess.
Second, the holding deepens the mystery behind the age-old question, first posed by the Beatles in the White Album in 1968: to wit, "Why don't we do it in the road?" After all, as the Fab Four noted, "no one will be watching us in the road" -- a dubious proposition, but assuming it's true, why not? Especially since Justice Roie has now concluded that "doing it" in the road is even legal -- at least in some settings (and under certain definitions of "it"). So why don't we? Why don't we do it in the road?
On a slightly different tack, I also found the opinion interesting, at a much deeper doctrinal level, because Justice Robie concludes that even though the detention by the police in this case was totally illegal (since, again, you can do it in the road), defendant can still get convicted of subsequently resisting this illegal detention -- that, as far as the exclusionary rule goes, the subsequent resisting "removed" the taint of the initial illegal detention.
As far as that holding goes, I gotta tell you that my civil libertarian rankles initially reacted negatively to such a holding, and to a degree still very much do. There's a large part of me that says that if I'm free to walk along a street, and the police abuse their authority and ask me to stop, I can say "Screw you" and keep on walking. We all agree on that, right? And if they then grab my hand, and forcibly try -- again, illegally -- to stop me, there's part of me that says I can pull my hand away, and keep walking. Can I shoot them? No. Of course not. Can I punch them? No. Though if, after I pull my hand away, they then wrestle me to the ground -- again, all of this illegally -- am I really just compelled to sit there and take it?
Something very similar to all this transpired here, so it's not just a hypothetical. At the common law, anyway, you had a right to resist unlawful authority. We were, after all, a nation of revolutionaries, unhappy with our experience with the King and very much unwilling to subject ourselves to the resulting tyranny -- or to allow a similar thing to transpire in our new nation. But, in a progression well known to historians (and in ways that have only intensified in the last generation), a nation that initially structures itself around a central fear of governmental abuse and power nonetheless, as it ages, becomes more and more convinced that its exercise of governmental power isn't so bad, and that citizens need to accept (or at least submit) to such power lest there be untoward consequences. And in the modern era, judicial doctrine has changed alongside this alternation in political perception. So that while you once had the right to resist the police in the event they attempted to act unlawfully, nowadays, the judiciary has increasingly held that you have to submit. Upon penalty of prison for resisting arrest, even if you can prove -- as here -- that you were merely resisting the assertion of unlawful conduct.
Now, in a democracy, is there at least a good argument for such a proposition? Sure. One could reasonably hold, I imagine, that you're obliged to submit because non-self-help remedies are superior. That rather than resist, you should submit and, thereafter, sue. That that'd be better for everyone.
But two things. First, given qualified immunity and all the other contemporary protections for governmental officials, what we may very well be saying as a result of such a holding is that you've got to submit and hence do effectively nothing in the face of the unlawful assertion of government power. (Remember, for example, that you can't even sue for injunctive relief given the standing requirement of Lyons and related procedural obstacles.) Which, again, strikes me as unjust. And even if you could sue -- and I'm assuming here that you could afford a lawyer or effectively represent yourself, dubious propositions at best -- even if all that's true, why can't you alternately just go about your way acting lawfully when you are confronted by a governmental attempt to illegally restrain you. Sure, if you're wrong about them acting illegally, you go to jail. But going to prison even when you're right? For doing what you have a critical federal (as well as state) constitutional right to do? At some level, that just seems remarkably harsh. And potentially profoundly unjust.
I know that, here, only the exclusionary rule issue is raised, likely (I imagine) because the comtemporary California jurisprudence on the right to resist is so unfavorable. And, again, I can see why the law might be as Justice Robie concludes it to be.
Still. There's part of me that says that I should be able to walk down the street, and continue to walk down that street, even if the police illegally tell me to stop. And that if the police then compound their illegal conduct by placing their hands on me, I can push their hands away, and if they tackle me, I can run. That far from being an offense on my part, it's an offense on their part, and I can resist it just as I could resist similarly illegal acts of private individuals much less powerful than the government.
So I'm torn. I've got more thoughts here, but it's time for a faculty meeting. Which I wish I could say would be a hundredth as interesting as Justice Robie's opinion.