The King’s Friends

A man driving through Nevada with his life savings in a back pack, eighty-seven thousand dollars, is stopped by a police officer. The officer explains that he stopped him because he was following a truck too closely then asks a long list of questions, one of which is whether he has any unusually large amount of money with him. The officer, having found no evidence of anything illegal, calls for another officer with a drug sniffing dog and a DEA officer. The dog reacts to the car, nothing is found. The policeman seizes the money, makes no attempt to charge the driver with anything.

The driver, an ex-marine, gets the Institute for Justice, a libertarian public interest law firm one of whose concerns is the abuse of civil forfeiture law, involved in the case. The story makes the front page of the Washington Post and his money is given back, almost a year after it was seized. No evidence is ever offered that he was doing anything illegal.¹

It is, except for the happy ending, a typical civil forfeiture case. Law enforcement claims that property, usually money, was used for some illegal purpose, often drug sales, and seizes it. The owner is not charged and no evidence is produced. In order to get the money back the owner has to go to court to prove that the money was legally acquired. For eighty-seven thousand dollars it might be worth doing but most seizures are for smaller sums, lawyers are expensive, and there is always the implied threat that if the owner tries to get his money back the law enforcement agency will charge him with something.

If you steal eighty-seven thousand dollars from someone and are eventually forced to give the money back, that does not usually end the case. But criminal prosecution, in our legal system, is done by the government, which has no legal obligation to prosecute any particular case and, in most such cases, little inclination to prosecute its own employees for stealing money that will be used to fund its budget.

As I put it in something I wrote in a different context, if the King controls criminal prosecution, the King’s friends can get away with murder.

Or highway robbery.

Another Story

James’ story began in 2014, when members of a state-federal task force misidentified James—an innocent college student—as a petty thief wanted for stealing liquor and empty soda cans. The plainclothes officers choked and beat James. After realizing he was not the man they were looking for, to cover their tracks, police charged James with several serious felonies, and a prosecutor took those charges to trial. A jury exonerated James on all counts. (From an account of the case by an IJ attorney)

When one of the officers, who had not identified themselves as law enforcement, grabbed for his wallet, James King assumed they were muggers and tried to run. They tackled him, beat him severely, then charged him with crimes they had no reason to believe he had committed. His attempt to sue for damages with aid from IJ has gotten up to the Supreme Court, back down to the Sixth Circuit, may eventually get back to the Supreme Court to resolve issues associated with the question of under what circumstances the federal government and its employees are liable in tort for violations of constitutional rights. It is possible that he will eventually be permitted to sue his attackers, even to collect damages. But nobody has charged the two men responsible for assault and battery for the assault or with perjury for charging James with crimes they had no reason to believe him guilty of. The state cannot charge them, since they were federal agents, and federal prosecutors do not choose to.

The King’s friends …

An Old Issue

I coined the phrase when writing about English criminal law in the 18^th century.² Judging and punishing crimes was public but prosecution was private; any Englishman could prosecute any crime. In practice prosecution was usually by the victim or someone acting on his behalf but it did not have to be.

Since any Englishman could prosecute a criminal case, the fact that an offense was approved of by the authorities was no guarantee that it would not be prosecuted. The point was demonstrated when a demonstration in favor of imprisoned radical John Wilkes ended with troops firing into the crowd and killing several people. The Wilkites responded by charging several of the soldiers, the magistrate who had ordered the troops to fire and the other magistrates present with murder.

The king had the power to pardon a convicted felon but doing so in too obviously partisan a way might provoke public outrage. In one notorious case two convicted murderers were pardoned, apparently because their sister’s aristocratic lovers applied political pressure on their behalf (“the mercy of a chaste and pious prince extended cheerfully to a wilful murderer, because that murderer is the brother of a common prostitute”).³ The Wilkites responded by raising money to fund an appeal of murder, a private criminal case. An appeal was a complex, expensive and difficult proceeding that had gone almost entirely out of use. It had, however, one large advantage:

“If the appellee be found guilty, he shall suffer the same judgement as if he had been convicted by indictment: but with this remarkable difference; that on indictment, which is at the suit of the King, the King may pardon and remit the execution; on an appeal, which is the suit of a private subject, to make an atonement for a private wrong, the King can no more pardon it, than he can remit the damages recovered in an action of battery.” (Blackstone 1884, Bk 4 Ch 23)

The appeal failed, as did the earlier criminal prosecutions of the magistrates, but like them demonstrated the possibility of using privately prosecuted criminal law against malefactors supported by the government. (Legal Systems Very Different from Ours, Chapter 15)

Torts, in American law, are privately prosecuted; suing government actors is difficult due to a variety of legal rules protecting them, of which qualified immunity is the best known, but not impossible. Since all of the immunity rules are creations of the courts, not the legislature, they can be changed by the courts. The Institute for Justice sues with two objectives, to get compensation for individual victims and to set precedents that would change the immunity rules. It can sue but cannot prosecute, cannot charge police officers with highway robbery or assault and battery however clear the evidence of their guilt.

At least it can’t in the courts. It can prosecute them in the court of public opinion in the hope of pressuring prosecutors, who can prosecute them, to do so. Getting a government prosecutor to prosecute a government agent is difficult but not quite impossible; Derek Chauvin was charged and convicted of murder for his role in the death of George Floyd. But that was an exceptional case by an enforcement system under extraordinary pressure.

Literal Murder in America

The basic point, that privately prosecuted law can be used by victims of illegal acts by government against those responsible, first occurred to me more than fifty years ago.

In 1969 a group of Chicago police officers opened fire at night on an apartment full of sleeping members of the Black Panther Party,  killing two of them. The police claimed that the Panthers had opened fire. I was living in Chicago at the time as a graduate student, mentioned to a friend that I was not willing to trust either the police or the Panthers to be telling the truth. She told me that the Panthers were offering tours of the apartment so I went — and discovered that one can tell which way a bullet went through a wall by the direction the splinters were pointing. They were all incoming.

The Cook County state attorney responsible for the raid and the police officers who executed it were eventually charged not with conspiracy to commit murder but with obstruction of justice, not with killing people but with lying about it afterwards. And acquitted. But in 1982, thirteen years after the raid, a civil case by the survivors and the mothers of the two men who were killed was settled for $1.85 million, paid by the city, county and federal governments.

Tort law is privately prosecuted. So, once, was criminal law.⁴ In an earlier post on some of these issues, after discussing possible problems with private prosecution, I wrote:⁵

A possible compromise would be to permit private criminal prosecution but only of public employees and only for crimes committed in that role — on the theory that those are the crimes a public prosecutor is most likely to decline to prosecute.

1. For one summary of the case see this Forbes story, which focuses on the legal dispute over whether the victim can sue for damages.

An IJ account of the litigation.

It is claimed, on what evidence I don’t know, that the dog reacted not to smelling drugs but to a signal from his handler.

2. The latest version of my research is a chapter in Legal Systems Very Different from Ours.

3. The quote is from Junius, the pseudonym of the author of a series of letters to the Public Advertiser.

4. Private criminal prosecution is still possible in British law, but with severe restrictions. “The Crown Prosecution Service can take over any criminal prosecution, and may then carry out the prosecution. It may end (or ‘discontinue’) the prosecution if it does not believe that it should have been brought.”

5. I also discussed some of this in two other posts: Enforcing the Constitution and John Marshall has made his decision.