It's OK if the King does it

Remember Seattle's CHAZ/CHOP? After the place was cleared, a bunch of local businesses and property owners sued the city and recently all reached a settlement. One part that definitely didn't help Seattle were tens of thousands of deleted text messages:

The city of Seattle has settled a lawsuit that took aim at officials’ handling of the three-week Capitol Hill Organized Protests and further ensnared the former mayor and police chief, among others, in a scandal over thousands of deleted text messages. The Seattle City Attorney’s Office filed notice of a settlement Wednesday in U.S. District Court, just three weeks after a federal judge levied severe legal sanctions against the city for deleting texts between high-ranking officials during the protests and zone that sprung up around them, known as CHOP.

[...]

Attorneys for the more than a dozen businesses that sued the city, led by Seattle developer Hunters Capital, sent a series of letters to the city in July 2020 — after another lawsuit over the violent police response to the protests — demanding that any evidence pertaining to the city’s alleged support and encouragement of the zone’s creation be retained, according to the court docket and pleadings.

U.S. District Judge Thomas Zilly concluded last month that officials ignored the notifications, sending the so-called Hunters Capital lawsuit to trial on two of five claims and dismissing three others. In doing so, Zilly issued a blistering order that leveled crippling sanctions against the city for the deletion of tens of thousands of text messages from city phones sent between former Mayor Jenny Durkan, former police Chief Carmen Best, fire Chief Harold Scoggins and four other ranking city officials during the protests.

The judge found significant evidence that the destruction of CHOP evidence was intentional and that officials tried for months to hide the text deletions from opposing attorneys.

There’s two threads to unpack here. The first is that the plaintiffs were always going to face a tough uphill battle in their lawsuits (at least on the “abandonment of duty” aspect) because of some inconvenient legal precedent where the state has absolutely no legal obligation to protect its citizens. Consider the case of Warren v. DC where three women called the police during a home invasion. The cops showed up, casually looked around, then shrugged and left. The three women were beaten and raped over the next 14 hours. They sued, but SCOTUS reminded them that the state didn’t owe them shit.

There are many others in this genre, such as Lozito v. New York City (Cops hid behind a subway car door while a guy got stabbed, court said 🤷‍♂️), DeShaney v. Winnebago County (Officials ignored reports of child abuse until a 4-year-old was beaten into a coma, court said 🤷‍♂️), Riss v. New York City (Cops ignored pleas from a woman until after her spurned suitor threw acid on her face, court said 🤷‍♂️), and Castle Rock v. Gonzales (Cops ignore reports of an estranged father kidnapping his three daughters. He dies in a shootout with police and cops find the bodies of all three girls in his car. The court said, you guessed it, 🤷‍♂️).¹

Though practically abhorrent, these rulings are legally well-founded. The default state is sovereign immunity, where anything the government does is by definition not illegal or criminal. Of course, governments can choose to waive immunity, which is why people are allowed to sue a city bus for running them over or something. But unless a government voluntarily allows itself to be sued for doing a bad job, there's nothing within the four corners of the Constitution that imposes any obligation on the state to lift a finger.

The second thread is how to respond to intentional destruction of evidence. Nominally it’s a crime², but one rarely ever prosecuted. Prosecutors have the potential to get really creative when it comes to pursuing criminal charges, at least against normal people. One guy was charged with evidence destruction for dumping fish he wasn’t legally allowed to catch back into the ocean, under the theory he was destroying a “record, document, or tangible object” in violation of a law intended to govern corporate financial record keeping.

Does that mean that officials could be charged for throwing documents into the fireplace? For criminal prosecutions, there is a legal obstacle and a practical one. Our friend sovereign immunity also protects criminal prosecutions, as is the case in a recent SCOTUS case involving prosecution of a Turkish bank and as Panamanian Leader Manuel Noriega tried to have happen. Those examples are both foreign sovereigns, and the law for domestic sovereigns is a bit more complicated and depends on the jurisdiction. Sometimes criminal laws create an intentional double standard depending on whether the person committing the act is an agent of the state or not, as was the case until recently in Washington state where a police officer charged with murder required the prosecutor to prove "evil intent" (something not required when prosecuting a peasant).

Beyond the state-specific carve-outs, there's the practical reality of governments generally being reluctant to punish one of their own. This reluctance is sharpest with police officers given the intimate working relationship they have with prosecutors. It still happens (as it did with Chauvin) but only in extreme circumstances, not as a matter of course.

Those reasons explain why criminal prosecutions are both legally and practically rare, something which would be politically difficult to change, because why would the government choose to ruin a good thing? At this point the only alternative method of redress if a government official commits a wrong is a civil suit. §1983 and similar laws explicitly waive sovereign immunity to allow civil suits, and made the field wide open. The text plainly stated that any citizen could sue every official acting under color of any law for any violations of any rights. And as relative outsiders, civil attorneys wouldn't have the same reluctance about going after “one of their own”. That's at least the ideal except Qualified Immunity has significantly gutted §1983's previously open field to the point. If cops can steal $225k during the execution of a search warrant with no repercussions, what makes you think anything would happen here? Qualified immunity doesn't explain the whole story, but it is a significant reason behind the nobility's lack of accountability.

It’s good to be the King.

1. h/t to gattsuru.

2. Although the statute says physical evidence, there's at least one WA case where someone was convicted for trying to break a cell phone to hide incriminating text messages.