THE BLOG
12/04/2014 07:57 pm ET Updated Feb 03, 2015

How America's Legal System Devolved Into the Game of Thrones

Three white Columbia, Missouri, police officers yelled "Don't move!", "Hands up!" and "It's not worth it!", interrupting the music on a sunny October day as Josh Williams and Phillip Porter were sitting in a city park, preparing to lawfully have a beer. Phillip noticed that the police guns were pointed at their heads just before the police commands were made to these two black men sitting in a car and listening to music, and he slowly raised his hands in surrender. The shouting initially caused Josh to reach for the radio to turn the volume down, but he realized that his imminent execution was possible. The police then forcibly removed the pair, searched and handcuffed them, and after Josh admitted he lawfully had a gun in the glove compartment, he was also told he was "under arrest." The vehicle was completely searched and their beer destroyed. After an hour Josh's gun was returned, and they were released.

I filed a lawsuit on behalf of Josh and Phillip, claiming they were unlawfully arrested and their rights violated. Eighth Circuit federal courts characterized the initial seizure by the officers as a consensual encounter and then found that, at most, it was a reasonable detention, also known as a "Terry stop," a brief stop and frisk, and that no violation of their rights had occurred.

The on-point precedent of the U.S. Supreme Court and nine of the 11 regional circuit courts of appeal would have found that Josh and Phillip had been arrested without probable cause of crime and their rights violated. Unfortunately, as a citizen of Missouri, I live under the rule of the Eighth Circuit and am thereby a lesser American. The federally protected rights enjoyed in most of the United States are diminished within the seven states of the Eighth Circuit.

Almost 30 years ago, Congress granted the U.S. Supreme Court nearly absolute discretion in the cases it had to hear, causing a devolution of the once-unified federal judiciary to one where the regional circuits are permitted to chart legal courses independent of precedent. The U.S. Supreme Court has consistently refused to protect its on-point precedents and only hears cases it finds interesting.

Judge Richard Posner of the Seventh Circuit of the United States Court of Appeals told The Daily Beast that the Supreme Court is not a real court but a quasi-political body:

It's very political. And they decide which cases to hear, which doesn't strike me as something judges should do. You should take what comes. When you decide which case to hear it means you've decided the cases ahead of time.

As a fan of Game of Thrones, I find that the intrigue of the Iron Throne ruling over the Seven Kingdoms is analogous to our present American legal system. Each of the 11 regional federal circuits (kingdoms) has been permitted to determine whether it will follow the on-point precedent of the U.S. Supreme Court, and nine of them are faithful to American legal principals (i.e., the King's Law), while two have gone rogue (in rebellion) and simply ignore those principles, knowing that the 60 or so cases heard by the high court each year will not impact their governance of the states under their control.

As a lesser American living under the Eighth Circuit, I was not surprised when our federal court found that Henry Davis' rights had not been violated. This middle-aged black construction worker was stopped in Ferguson, Missouri, and mistakenly arrested on a warrant for a man with a different middle name and different Social Security number. It was discovered by the Ferguson Police during booking that they were booking the wrong Henry Davis, but he was booked anyway. As the second man being placed in a one-man holding cell, Davis requested a nearby mat to sit on, a request that offended the officer. Four officers later returned, then handcuffed and beat Davis to the point that he had to be hospitalized. Davis was then charged with damaging government property by bleeding on police uniforms. When Davis was released, he filed a civil-rights suit against the Ferguson Police. The in-station video recording was sped up to 32 times normal speed and was unviewable. The St. Louis County Prosecutor then filed "assault on a law-enforcement officer" charges against Davis, in apparent retaliation for his lawsuit, but the charges were dismissed. A federal court found that Davis' concussion from the beating was not a serious-enough injury to be a violation of his rights, and his case was dismissed.

Recently, a pregnant, white healthcare worker raped by law enforcement while in custody of Ferguson police filed a federal lawsuit. Even though she is a lesser American living within the Eighth Circuit, I hope her federally protected rights will be upheld by our federal courts with the focus of public attention now on Ferguson.

"[A] riot is the language of the unheard," said Martin Luther King Jr. Law is created to establish rights and obligations and to protect basic human dignity. Race complicates those considerations in our country. I've found that the contextual analysis for considering the Eighth Circuit's holding in Josh and Phillip's case was aided by University of California, Berkeley Law Professor Ian F. Haney-López's academic writings "Institutional Racism: Judicial Conduct and a New Theory of Racial Discrimination" (1999) and "Intentional Blindness" (2012).

"No justice, no peace!" is a familiar refrain of civil-rights protestors. "Justice will not be served until those who are unaffected are as outraged as those who are," it's been said. The U.S. Supreme Court will have an opportunity to hear Josh and Phillip's case, but if past is prologue, it will deny that requirement of justice. Congress must act to require our high court to resolve conflicts between the federal circuits and when its on-point precedents are denied by a lower federal court of appeals, to protect the rule of law and dignity of every American before the law.