On his excellent blog “The Ethical Lawyer,” Franco Tarulli sounds a perceptive, and unusual, ethics alarm.
On January 11, 2011, there was another botched police raid at the wrong house, this time in the San Francisco suburb of Castro. Police had apparently given a mistaken description of the house that was supposed to be raided when they sought the warrant. As a result, innocent law professor Clark Freshman was put in handcuffs and scared out of his wits, as police ignored his objections that they had the wrong house.
Professor Freshman is still hopping mad, as all of us should be at the increasing frequency of these inept police invasions. “I told them to call the judge and get their warrant updated. They just laughed at me — I guess that’s why they’re called pigs,” he told reporters. He pledged to sue until he made sure he got to see the agents’ “houses sold at auction and their kids’ college tuitions taken away from them. There will not be a better litigated case this century.”
Tarulli writes, correctly, that while the professor’s attitude and intentions “might be acceptable – even expected – from any other member of the public, it is not acceptable coming from an officer of the court.”
He explains:
“Professor Freshman’s words suggest that he intends to use his lawsuit as an instrument of personal revenge. That demonstrates a serious misunderstanding of the purpose for a civil lawsuit. Tort law was never intended to be an instrument of punishment; instead, it is supposed to be a means of obtaining compensation. The idea behind the right to sue for damages, is that by obtaining a monetary award, the plaintiff is put, as best as the court can accomplish it, in the same position as if the wrong had not happened. While the civil courts can, and often do award punitive damages, punitive damages should be measured, and meted out in a way that deters similar conduct in the future. They are not intended to be used as means of financially crippling the defendants and their families by taking away the tuition funds of their children.
“If there was misconduct on the part of law enforcement, then that should be investigated and punished. But haughty, high-handed behavior by police should not be met with haughty, high-handed behavior by lawyers. In the end, what is at stake is the credibility and integrity of the justice system. What Professor Freshman threatens to do would transform the law into a sort of gladiatorial contest. Not exactly a good example of holding up the finest traditions of the profession. Worse, if those are the lessons his students take from his behavior.”
Exactly right.
And, I would add, for a law professor who hasn’t been transported here from 1967 in a time-traveling DeLorean to refer to law enforcement officers as “pigs” betrays an unacceptable level of respect and civility toward the brave and dedicated individuals who are charged with protecting us by actually enforcing the law, rather than just talking about it.
While Freshman plots his vendetta, he owes every police officer in the country an apology.
Ethics Alarms 
And, I would add, for a law professor who hasn’t been transported here from 1967 in a time-traveling DeLorean to refer to law enforcement officers as “pigs” betrays an unacceptable level of respect and civility toward the brave and dedicated individuals who are charged with protecting us by actually enforcing the law, rather than just talking about it.
If someone illegally breaks into my house, violates my personal privacy, and laughs when I point it out to them, then calling them names is by no means an unacceptable level of respect.
Everyone deserves a base level of respect, but that level of respect is not constant. It is modified by actions. Screwing up and then fixing it is a great way to earn respect. Instead, these cops trampled on a civilian’s rights and then laughed about it. All of us should have lost our respect for these officers of the court.
Instead of Freshman owing all officers an apology, it is the officers whose bad behavior disgraced the uniform that owe all other officers an apology.
I’m not quibbling with anything else in this post. Freshman is clearly stepping over the line in with his rhetoric behind and likely motivation for his lawsuit.
The Professor was angry after being put through a horrible and outrageous ordeal. He wan’t acting as an “Officer of the Court”, but as a duly outraged citizen. What is hard to understand about this?
Additionally, he didn’t call them pigs. He proffered that this type of behaviour can lead to such epithets. I heartily agree. It makes for easy writing to put the victim under a microscope to find a point where he may have reacted with imperfect decorum and say “A HA”!
Sorry, that’s why lawyers are called professionals; they don’t get to act like everyone else. Ever. They are always lawyers, 24-7, and subject to the rules of ethics and conduct lawyers must follow. Tarulli is 100% correct.
Since when did Lawyers start adhering to their professional code of conduct? I could sit here and tell personal stories of my own all day long that would curl your hair.
But of course the Police aren’t bound by standards because they have a difficult job. Others, including me, are bound by professional standards. That does not trump my right as an American under the law. Keep blaming and berating the victim. It’s really all you can do here.
That’s really your argument, George? Really? It’s Ok for a lawyer to breach his professional obligations because other lawyers don’t always meet their (tough) standards? I train lawyers in ethics, and if other professionals were as conscious of ethics as lawyers, society would be a lot better off. Since when did Lawyers start adhering to their professional code of conduct? Only about 99.9% of the time, precisely because they hold themselves to their standards pretty stingently—like pointing out that throwing a tantrum isn’t professional, even when you’re a victim.
Sir, I’m not here to argue that Mr. Freshman may have violated some hallowed point of professional ethics. Sounds to me like he got a little hot under the collar and maybe went a tad too far in his rhetoric. After he was handcuffed and cursed to his face for hours in his own home, as he asked them to do their job and cursorily verify the warrant. I’m amazed that you chose this as your ethics issue. Christ himself is held up as an example for humanity to behold for holding his tongue under such conditions. With all the ethical problems I see around me, including the trampling of a thousand years of Anglo-Saxon legal tradition in our lifetimes, and this is your issue? Shame.
Two tells of the lazy and incompetent commenter. 1) The Keith Olbermann “Sir,” which is supposed to add weight to weak commentary through faux formality. (It is often followed by, “Good day to you, I take my leave! Humph!”) 2) The absurd, “Don’t you have better things to write about than this?” comment. Well, let’s see…the blog has 2,963 posts to date, of which this was ONE. The commenter appears, inexplicably, to think that this (“your” ethics issue) is the sole topic explored on Ethics Alarms, which shows a stunning lack of observation powers and initiative. Oh, dear, how I try–I list categories, I have links to principles, if you scroll down you hit about ten recent posts that have nothing to do with lawyers losing their cool, and yet George is all upset because he thinks this is all I care about.
In fact, I don’t care about this particular lawyer at all. The post, as those who comprehended it know, was intended to 1) second a colleague’s alert alarm regarding lawyer decorum and public statements 2) to educate the non-lawyer public regarding the higher professional standards lawyers pledge to adhere to, even when they are justifiably furious, and 3) to highlight the more serious problem of police raids, which I have written about elsewhere on the blog, and no, I won’t provide a link,George. Use the handy-dandy search function—it will be good practice for you.
Meanwhile, any member of the justice system who publicly calls police officers, who risk their lives for the public, “pigs,” deserves to be called out for it. “Shame” my foot.
All of your points are well taken, Sir. I have some Jewish heritage and Mr. Freshman may as well. Some of us tend to get a little worked up about this kind of state violence. It’s up to the reader to decide which point is most important.
It’s nice to have guys like you around keeping us “in line”. I think.
Of course, I don’t keep anyone “in line.” I have no power or influence whatsoever. My objective is to raise the ethical issues that risk being lost as the public and the media react to stories emotionally or politically.
The thing is, he called them “pigs” a month after the incident, and made the epithet general—“them” as in police officers generally.” This is no longer “heat of the moment” stuff. and calling a police officer “pig” is no different, in my view, than calling a black man “nigger” or a Jewish man “kike” in anger. One moth later and he implies that all police deserve to be called “pigs”? Apology time. (And good luck talking yourself out of that next speeding ticket….)
Did the police officers apologize for their atrocious behavior? Did they put anything in place to make sure it wouldn’t recur? Did any other police officers disavow the behavior of these officers? No. They doubled down: “SFPD offered no comment other than reiterating they had a warrant from Judge Richard Kramer to search 243 Diamond.”
(And good luck talking yourself out of that next speeding ticket….)
We had a back and forth about selective prosecution before. This is another example for why it is inethical on its face.
1) It probably wasn’t those agents’ fault, you know. The agents who cased the actual crime scene gave them the wrong information. It wasn’t their fault. Guilty people also react by saying that the police have the wrong house, I assume.
2) If he’s suing, then the police lawyers will tell them not to apologize.
3) That still doesn’t justify “pigs,’ and Freshman insulted my friend, the Chief of Police in Montgomery County, who is as good a cop as ever lived, by making it general
4) You know, I assume, that the speeding ticket comment was a joke. Though it is probably true. That wouldn’t be ‘selective enforcement,” however—that would be “payback.”
1) Isn’t it common for at least one of the police officers involved in a raid to have some kind of responsibility for what’s occurring? Are you telling me that there was nobody that was part of the group serving the warrant that knew anything about the case?
2) True, but still inethical.
3) I don’t have any difficulty calling the cop that robbed me a pig while the cop that didn’t an officer. Freshman insulted a group of people that wronged him and are now behaving inethically. If your friend is caught up in the insult, he should be upset by all the officers that are validly giving him the bad name.
4) While selective enforcement is normally thought of on the prosecution side. This case is exactly the same thing. Selective enforcement of everyday behavior allows legal payback.
1) Isn’t it common for at least one of the police officers involved in a raid to have some kind of responsibility for what’s occurring? Are you telling me that there was nobody that was part of the group serving the warrant that knew anything about the case?
Common. Not always, by any means.
2) True, but still unethical.
Unethical by whom? Not the lawyer. Not the police who follow legal advice. Sometimes apologies have to wait.
3) I don’t have any difficulty calling the cop that robbed me a pig while the cop that didn’t an officer. Freshman insulted a group of people that wronged him and are now behaving unethically. If your friend is caught up in the insult, he should be upset by all the officers that are validly giving him the bad name.
He’s not…he probably hadn’t heard about it. Not the point. I don’t think calling people degrading and offensive names is ever justified, or ever ethical. It’s “Tit for Tat” ethics…you hurt me, so I can hurt you. Not ethically, you can’t.
4) While selective enforcement is normally thought of on the prosecution side. This case is exactly the same thing. Selective enforcement of everyday behavior allows legal payback.
No, it’s really not. Selective prosecution isn’t personal; that would be unethical. It is an efficient way to enforce by example, using high profile defendants.
1) That sounds like another reason to call the cops pigs to me.
2) Unethical by the police department as a whole. They clearly screwed up and instead of owning up to it, they’re trying to stonewall and wrangle out of it. It’s the legally “smart” decision, but what does that have to do with the ethics of the situation? I will apologize to you only when I get off for wronging you. Chances are that wouldn’t even happen. Don’t most high profile settlements include a statement that there is no admission of wrongdoing?
3) And you thought Miss Tiggy was funny. Clearly, it was not degrading or offensive. Wait, that name wasn’t earned. Is name calling okay so long as the name isn’t applicable?
4) Looks like you had an editting error here
Fixed the mistake (thanks) and responded to pint #4, which I missed.
1) It’s not.
2) The department is accountable and responsible. It is unfair to say every officer was unethical.
3) “Tiggy” I took to be a play on your screen name, and a play on words, rather than suggesting you had any specie-al relationship to the Muppet. I also didn’t think it was intended to wound you to the core, assuming that your core is pretty resilient. There is no comparable ambiguity regarding “pigs,’ which is pure invective.
1) I think it’s an ethical duty for officers executing a search warrant to know what in the world they are supposed to be doing. Some background is required for that, and it would also be helpful to the police. Not specifically listed evidence in plain sight (or logical sight from the warrant) would be more easily recognized by someone familiar with the situation.
2) Who’s saying every officer is unethical? I’m saying the department in general, and the department speaks for the police who are referred to as pigs.
3) Tiggy was clearly a play on the screen name and clearly also an attempt to insult and degrade. That seems much worse than a phrase that instantly links the bad behavior of this department with general corruption. Also, are you saying that cops don’t have resilient cores?
4) So you’re allowed to make “ends justifies the means” arguments? Selective prosecution is intentionally treating citizens differently depending on factors irrelevant to the specific offense they are accused of. Whether the enforcement is based on being “personal” has no real bearing. It’s personal for this defendant.
It’s a utilitarian tactic. “Ends justifies the means” is not per se unethical. Sometimes it does, It does in the case of rational selective prosecution.
Good idea for a post, actually. Thanks.
The only thing that high profile selective prosecution does is display how arbitrary and capricious the law can be. Is the desired end a cowed populace scared of their unpredictable and cruel overlords?
Balderdash.
That’s what I take out of it. Are there any studies done on this?
Seeing someone punished does change behavior of others. That’s well supported.
Seeing people sometimes punished and sometimes not for the exact same behavior? That’s another matter all together.
If it’s for the exact same behavior, then the one being punished had a higher standard of duty by virtue of status or position. Martha Stewart. Michael Vick. It is impossible to punish every infraction, but if a whole class of infractions are NEVER punished, then the law becomes a dead letter.
You are rationalizing. See the way you phrased that first sentence.
Fame does not equal responsibility. And your argument from infinity is also not working. Of course not every infraction is going to be punished. That’s the same for murder, but it’s no reason to go after OJ and Spector over Brian Woodbridge and James T. Matthewson (latter two names completely made up).
If something is going to be punished, it needs to be punished across the board. There needs to be relevancy for differences in prosecution.
That’s no rationalization. Murder is not a subject of selective prosecution, so it’s obviously a lousy analogy. We won’t prosecutor a first offender minor for drug possession that would send a pro athlete to jail…which we do, in part, to scare the potential minor defenders.
Murder was intended hyperbole.
Are you saying that famous people can’t be minor offenders? It seems that selective prosecution just means enhanced punishment to you.
The professor’s comment notwithstanding, I think that lawyers do the public a service when they stand up to authorities that overstep their bounds. They have knowledge and resources that the ordinary individual does not and are in a better position to pursue a lawsuit.
While Mr. Tarulli is correct in noting that damages in tort are generally compensatory, rather than punitive, the use of punitive damages to discourage officials from abusing their power is an old one, going back to John Wilkes and his wrongful persecution for criticizing the government in the North Briton XLV. Should those damages be “financially crippling”? Maybe not, but if they are going to deter abusive government behaviour in the future and demonstrate society’s detestation of official abuse of power they must have some bite.
That’s fine and correct, but that is not consistent with the tenor of the professor’s remarks. He wants to hurt them personally, and hurt their families. The law suit is justified; his motives and expression are not.
He should have left the families out of this, but isn’t the point of punitive damages to hurt? Or are you saying that he should be going after whoever gave the police the wrong address, rather than the officers personally?
Sure. But they also require genuine wrongdoing. He wasn’t hurt; nobody was. As botched raids go, this one is peanuts. He’s a lawyer–he’s supposed to use process for justice, not vendettas.
Are you playing the “no harm, no foul card”? That’s neither legally nor ethically valid.
No, no, no. I’m playing the “you can’t ask for more damages than you reasonably sustained, and being pissed of doesn’t count for much.” If there was evidence or wanton negligence or recklessness or malice, then punitive damages may be justified. Courts don’t award punies automatically, and law enforcement is tough.
Applying for a search warrant for a house with 2 stories and 1 tenant, where there are really 3 stories and 2 tenants is negligence. Not noticing the mismatch when serving the warrant is also negligence.
Yes law enforcement is tough, but that’s not an excuse for bad behavior. How many bad ethics arguments can you pull out in this thread? It’s getting impressive.
wow! i see why i stayed away.
but, here goes nothing…
i say make them bleed.
cops are above the law when they want to be
and victims of a hard job, stress and honest mistakes
when they want to be. “Gee, I thought that was my taser.” Officer Johannes Mehserle after shooting Oscar Grant in the back while prone and handcuffed.
wait, wasn’t that in oakland, just across the bridge from san fran?
i am not an attorney, but it seems to me that part and
parcel of suing an entity, as well as those who represent it
is to bring enough pain to alter behavior. if i recall the southern poverty law center broke the back of a white supremacist group by going after the group and an individual that the group sold their property to as a shield against seizure in case of a law suit. [Mansfield v. Pierce]
sometimes it comes down to customer service. police are public servants. we are their customers. a quick apology (heartfelt) and some people skills would probably have saved the sfpd a lot of grief and some of us a lot of time posting to a conversation where people are talking past each other instead of to each other.
btw: much love to tgt for trying to keep jack honest.
But the post is about legal ethics. Lawyers have ethics rules that specifically forbid using process this way.And you really think defending calling cops “pigs” is keeping me honest?
(Missed you!)
Why anyone has trouble telling the difference between: “You have harmed me with your carelessness, and I will sue you to make me whole, and seek punatives to send the message that such carelessness is intolerable” (ETHICAL) and “You made me mad, so I’m going to RUIN THE LIVES OF YOUR KIDS!!!! BWHAHAHAHAHAHAHAHA!!! (UNETHICAL) is a mystery to me.
Good summation and debate, Jack. Boy, I really got under TGT’s skin with that “Miss Tiggy” thing, didn’t I? I just intended it as a nudge in the ribs. Honest! Ohdearohdearohdear…
Sue them! These police are out of control and it’s time attorneys took the fight to them. I’m sick of watching innocent people humiliated, scared and abused by the police forces throughout the US. Thank God for Professor Freshman!