Response to Andy McCarthy

Sunday, June 18th, 2006

Over at NRO on Friday, Jonah Goldberg asked Cornerites for their reactions to the Hudson case. Andy McCarthy bit, and gave exactly the answer you might expect from a conservative former prosecutor. I then responded to McCarthy with an email to Goldberg, which he ran here. McCarthy then responded here.

Before I — um — respond to McCarthy’s response, I’d like to add one more point to McCarthhy’s original post, where he writes:

One of your correspondents talks about the militarization of the police; in point of fact, many criminal gangs are better armed and far more ruthless.

This is a bit of a canard. The “the criminals are better armed” argument is often put forth by SWAT fetishists in justifying ever-increasing military tactics for civilian police departments. The first response to that is that it shouldn’t matter. Cops aren’t soldiers. Period. The two have completely different tasks and responsibilities. Cops are supposed to protect our rights and safety while respecting our constitutional rights. A soldier’s job is to seek out and kill the enemy. It’s dangerous to conflate the two. The second response is that McCarthy is just plain wrong. Dave Kopel — among others — has done extensive research on the weaponry favored by criminals, and the results have shown that, overwhelmingly, drug dealers, gangbangers and the like prefer small, easily-concealabe weapons. Anomalous incidents like the West Hollywood shootout aside, the idea that police face heavily-armed drug dealers toting massive hardware is a myth.

The funny thing is, conservatives are always quick to cite Kopel’s research when arguing against gun control measures like the assault weapons ban. But they seem to forget about the research when arguing for more power, more guns, and less oversight for the police.

But let’s get to McCarthy’s response to me. He writes:

Mr. Balko’s point about the disparate treatment by prosecutors of those who accidentally shoot police versus police who accidentally shoot civilians may be well taken — he’s done the research, and I haven’t. I don’t know what the metrics are, what the size of his samples are, etc., but as a former prosecutor, I would concede that instinctively and institutionally, I’d be more apt to be sympathetic to the cop and suspicious of the civilian. That’s not about right-or-wrong; it’s just an honest observation about reality, and I wouldn’t be surprised to find that reflected in the statistics.

Points for honesty. But as anyone who’s read this site regularly now knows, McCarthy’s position is hardly “an honest observation about reality.” It’s blind, misguided trust of police officers over civilians. And it’s why prosecutors like McCarthy are a huge part of the problem.

He continues:

But Mr. Balko’s suggestion that it was a failure on the part of the court to “provide a sanction for police” who fail to follow the rules is off the mark. That is not the court’s job; it’s the job of legislatures, which can create civil and criminal remedies — and which can conduct extensive hearings toward that end rather than deal with issues only as they come up in litigation, as those issues are teed up by the litigants.

If the legislature of Michigan enacted, and the governor signed, an exclusionary rule for no-knock violations, they would be perfectly within their rights to do so. Even if Justice Scalia and the rest of the majority personally thought that was an excessive remedy, they would surely leave it undisturbed. And then voters would have someone to hold accountable when it inevitably turned out that dangerous criminals were escaping conviction due to the excessive rule. And the voters, through their representatives, could then change the law to something more measured and sensible. That’s how things are supposed to work.

That’s not the way the Bill of Rights works. In Wilson, a unanimous Court (that would include Scalia) determined that the knock-and-announce rule is ingrained in the Fourth Amendment. That is, it is part of the Bill of Rights. Which means it isn’t subject to a popular vote or to the whim of state legislatures, short of a constitutional amendment. Therefore, it most certainly is up to the Supreme Court to provide a sanction severe enough to make sure the rule is observed. I’m sure there are lots of state legislatures (and if I had to guess, McCarthy) who’d love to vote away the Fourth, Fifth, Sixth, and Eighth Amendments entirely. Fortunately, we don’t subject our natural rights to a popular vote.

Moreover, Scalia’s opinion didn’t say that states “may” enact appropriate remedies, he asserted that exsiting remedies, such as civil suits and internal discipline are sufficient to prevent illegal no-knock raids. As the state of Michigan and the U.S. Solicitor General both acknowledged in their briefs, sanction in either case is almost unheard of for an illegal no-knock entry. Which means that Scalia, McCarthy, the Court’s majority in Hudson, and all of its supporters are taking the position that we now have not just a law, but a recognized constitutional right on the books that isn’t now and probably will never be enforced.

Isn’t “rule of law” supposed to be a conservative principle? Aren’t conservatives always complaining about having laws on the books that never get enforced? Or does that one get thrown out when we’re applying the law to cops, instead of to civilians?

Also, is busting drug offenders so important that conservatives are willing to abandon the Castle Doctrine? The one certain outcome of this case is more illegal no-knocks. Which inevitably means more raids on innocent people, and more raids on nonviolent offenders.

McCarthy concludes:

Put another way: liberals and civil libertarians can easily get the exclusionary rule they want for no-knock violations; all they need to do is persuade people that it’s the right thing to do. It’s not, so they won’t. (In fact, it’s so obviously too criminal-friendly that most legislators wouldn’t dream of proposing it.) Let’s not pretend that the complaints today are are anything more than people grousing that they couldn’t get the Court to impose by judicial fiat something they don’t believe they can achieve through the democratic process.

As I hinted at above, there’s an old libertarian joke that says if the Bill of Rights wre put up for a vote today in Congress or most any state legislature, it would likely lose across the board.

Which is why there are some rights that aren’t revocable by vote (or, to borrow a term, “inalienable”). One of them is our right “to be secure in” our “persons, houses, papers, and effects” against “unreasonable searches and seizures.” And in Wilson, the Court agreed that the long established Castle Doctrine, which prevents police from entering a home unannounced save for in limited circumstances, was a fundamental part of that security we enjoy. These things aren’t subject to a vote. And because all other remedies to violations of this right are clearly insufficient to adequately protect it, the Court should have preserved the exclusionary rule.

Fundamental rights aren’t subject to the democratic process.

I’ll send McCarthy a copy of my paper when it comes out. I’d be interested to see what he thinks of a few of my recommendations to rein in the damage caused by SWAT overkill and the militarization of police, such as videotaping all SWAT raids, imposing strict liability on the cops who conduct them (as well as the government agency they’re working for), using them only for cases in which someone presents a direct and immediate threat to the community, and opening the entire warrant process up for public scrutiny — including the prosecutors and judges who sign off on them.

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