Discretion Abused

A law abiding citizen wants to legally transport his handgun from one state to another. He puts the unloaded weapon and bullets separately inside his luggage, and checks the bag at the airport after properly advising officials. Due to weather conditions, his flight is diverted to a different state where he’s stranded temporarily and obliged to collect his bag there while waiting for another flight.

Unbeknownst to him, the law in the state where he’s stranded requires a license for the possession of handguns. He has no license in that state. The man dutifully advises airport officials about the gun once again when he checks the bag for his new flight. Airline officials alert police. The cops arrest the man, toss him in jail for 10 days without charges, and refuse to return his gun for more than 3 years. He wants to sue the goons over this outrageous abuse of power.  

“Tough rocks,” say the courts.

"We recognize that he had been placed in a difficult situation through no fault of his own," wrote a federal Appellate Court Judge, but the law "clearly requires the traveler to part ways with his weapon and ammunition during travel; it does not address this type of interrupted journey or what the traveler is to do in this situation."

The U.S. Supreme Court might soon decide whether to hear the case, and I hope they do; this fellow deserves justice, but that’s beside the point of this sad little tale. Forget about all the legal technicalities and mumbo jumbo, the man was obviously as innocent of any wrongdoing as a new-born lamb, and everyone knows it – especially the police who subjected him to the unnecessary ordeal. He never should have been arrested in the first place.

A short time ago, I wrote about my hero, Dr. Julian Heicklen, and his noble crusade to lawfully inform prospective jurors about their not so widely known power to nullify the law or its application in cases where an injustice would result with a criminal conviction. The fact that prosecuting attorneys also enjoy this power is very well known, and that is probably the reason why our man was not charged for a technical violation of the law after serving 10 long days of his life in the slammer. 

We all know as well that the police enjoy this very same power. They are not required to write a speeding ticket in every instance, for example, when a warning will fairly serve the purpose. They have wide discretion whether to bring charges in almost any case and they employ that discretion frequently in situations like this one.

Police authorities too often abuse their lawful discretion, and that is clearly what has happened here. They should be ashamed.