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.”
“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.”
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.