TheAgitator.com
Scalia’s New Professionalism Comes Full Circle
Friday, January 18th, 2008In the 2006 Hudson v. Michigan case, Justice Antonin Scalia wrote a laughable opinion arguing that the Exclusionary Rule needn’t be applied in cases where police perform an illegal no-knock raid, because police departments across the country have embraced a new “professionalism,” whereby bad cops are punished or fired, and victims of police excesses can file and win civil rights lawsuits. In fact, Samuel, Walker, one of the scholars Scalia cited in his opinion took to the L.A. Times op-ed page to explain how Scalia had misinterpreted his research.
I’ve had some fun with Scalia’s “new professionalism” canard over the last couple of years, pointing to news story after news story showing that the fabled “blue wall of silence” is as sound and secure as it’s ever been.
Last week, the Supreme Court heard a case from Virginia in which police illegally arrested a man after a traffic stop revealed he was driving on a suspended license. Virginia law bars police from making arrests for misdemeanor traffic offenses. In this case, the cops illegally arrested the guy, then forced him to take them back to his hotel room. There they searched him, and found some crack in his pocket, for which he was arrested and convicted.
The Virginia Supreme court threw out the conviction, explaining that evidence obtained from a search following an illegal arrest can’t be used at trial. The state of Virginia appealed to the U.S. Supreme Court. From the tone of the questioning this week, it looks as if the Roberts court is prepared to rule for the state—that evidence seized in searches resulting from illegal arrests should be admissible at trial. Which means the court is well on its way to either overturning the Exclusionary Rule, or limiting it to the point where it’s basically useless. Virginia’s attorney general was asked if, consistent with this case, someone could be (illegally arrested) for jaywalking, then have his home searched pursuant to that illegal arrest, then have the evidence found in the search used against him at trial. He said yes.
I’ve argued that while the Exclusionary Rule isn’t perfect, it’s necessary, because it’s really the only effective deterrent to Fourth Amendment abuses. History has shown us that bad cops in fact aren’t properly disciplined by their departments or by prosecutors. The doctrine of qualified immunity and the tendency of judges, jurors, and police administrators to show deference to police, victims of illegal searches and excessive police tactics rarely if ever recover any damages—if their case is fortunate enough to even get by summary judgement.
Which brings me back to the Virginia case argued before the Court this week. The state of Virginia and the U.S. government (siding with Virginia against the Fourth Amendment) once again brought up the argument that disciplining and firing police officers who perform unlawful searches is a better remedy than the Exclusionary Rule.
That raised the question: What happened to the police who performed the illegal search in this particular case? NPR found the answer (listen to the tail-end of the audio). Not only were they not disciplined, one of the officers was named his city’s “Cop of the Year”—the same year he took part in the illegal search.
What if instead of relying on the departments to punish an officer the victims themselves could sue them for violating their rights?
I’ve met Justice Scalia’s son, several times, and if the old man is half as arrogant as his son, I don’t see things going well for us regular folk.
However, I truly hope that there is a good cop out there that will take this to heart and arrest the Virginia AG for some stupid infraction and then search his home. Maybe once they’ve been a victim of their own stupidity they might reconsider.
Isn’t it inherently problematic to have the only recourse for citizens whose rights are violated to have the police officer fired or to pursue a civil case FOR MONEY?
The recourse must be viewed form the eyes of a police officer who is considering how carefully he/she will adhere to the requirements of the 4th Amendment. If he is concerned about losing his job then that seems to put him in a very unfair position of “being a hero” and “taking a criminal off the street” or not being aggressive (aka playing by the rules) because he likes his job. I imagine it might truly make officers think twice if the punishment was ever going to be doled out effectively, but is that the motivation we want for police officers in those cases? Do we want to be firing cops left and right and replacing them?
As for civil suits, how often can the officer expect to pay out? Is he willing to roll the dice and assume what he feels are small risks? Will he be bailed out by insurance or his union (or communities who feel they’re a hero for “cracking a case” with an unlawful raid)? I don’t like what I imagine the answers to those questions would be.
On the other side, the ability and likelihood of a wronged citizen to pursue a complaint: A civil suit will only work if there’s money to be won, otherwise your paying for principle and that’s IF you can afford a lawyer not on contingency.
From this perspective, perhaps the best part of the exlcusionary rule is that it is easiest to be enforced in the same criminal courts where the resulting charges are brought, where appointed lawyers will make the appropriate arguments as PART of their overall defense of their client and to a neutral judge. NOT because it will pay out money or to some police review board.
If these bastard roll this rule back, they should just go ahead and form their own fucking country. I’d love to hear Scalia argue original intent about that, like the founders would have wanted british soldiers fired or sued in court… assholes.
TGGP,
People can do that. It’s called a Section 1983 suit. They are not always easy to win because of various immunities, however. But they are out they are do happen regularly and with some regular success.
Improper searches are tough though because the damage is not often viewed as significant and so the money recovered is not always substantial and that deters complaints. Plus if you were suing a police officer for an illegal search of your home that turned up key evidence that put you behind bars for a serious crime, what do you think your chances of convincing a jury would be that he owed you money?
“Whenever the legislators endeavor to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any further obedience.” ~ Locke
“It is incredible how as soon as a people become subject, it promptly falls into such complete forgetfulness of its freedom that it can hardly be roused to the point of regaining it, obeying so easily and willingly that one is led to say that this people has not so much lost its liberty as won its enslavement.” ~ Etienne de la Boetie
NickT, I will say this in response to your statement about firing officers right and left. The fact is- and I believe that Radley’s volume of work would bear this out- that there are extremely few bad officers, maybe 1-2% tops. The real problem is the blue wall of silence which results in the other 98-99% effectively sticking up for the criminals (and, that’s what they are, let’s not mince words) when they’re exposed. That’s in addition to the prosecutor, judge, and jury typically doing the same.
Getting rid of those officers would have little impact in terms of staffing, and in fact would serve to raise the standards, raise the self-esteem of the remaining officers, and help keep them in line, and of course lower the liability for the city. That’s not to mention the positive effects of not having to put up with the crimes that these guys commit. It’s a win all around.
The Exclusionary Rule is a perfect example of judicial legislating from the bench. The Rule could easily be passed as legislation, or as a Constitutional Amendment. Instead, when you rely on judges to make the law for you, you get them screwing around with American rights. It should be no surprise to anyone familiar with judicial legislating from the bench, whether in Roe v. Wade, Kelo, or cases like this. All of these “rights” live by the Judge, and die by the Judge.
Better to just pass a law on the exclusionary rule, or to amend state Constitutions to make the exclusionary rule a fundamental right. Until then, every time a cop arrests someone from an illegal search, you’re going to tremble in fear because the court could always gut it to nothingness.
(PS: I’m not saying that writing a law or constitutional amendment would be that much better, only that it would probably hold up against judicial legislation for a little while longer. The Kelo case showed that Courts don’t even like the actual amendments that say private property is ours. Ultimately, what’s needed is a healthy disrespect for the police.)
But no legislator would ever introduce a law or amendment which has so much potential to help bad guys “get off on a technicality”.
The legislating from the bench aspect of the Exclusionary rule is troublesome as Sydney points out, but it is extremely unlikely that anything better will ever come along. So it seems to me that it is quite necessary if the fourth amendment is to have any meaning at all.
As it happens, I was listening to NPR yesterday or the day before, and I recall that they issued a correction to that story. The “Cop of the Year” award was given to the officer two years after the illegal search, not in the same year. I don’t see that correction on the NPR web site, however.
Why does the Virginia state government have standing in the federal courts here? Is this not a Virginia state law, fully supported by the Virginia Supreme Court? What constitutional or federal law issue is at stake here? There is something terribly perverse about allowing the state government to appeal to the U.S. Supreme Court to fight a law passed by the Virginia legislature.
I found the correction. Listen here, and skip ahead to 1:01.
Mike has an excellent question. On what grounding does Virginia stake its appeal?
Canada has a “balancing test” for exclusion of evidence.
I see two problems with exclusion of otherwise-reliable evidence as a remedy for constitutional violations:
1. It is no remedy at all for someone whose rights are violated, but who couldn’t be criminally convicted if the evidence was admitted. In other words, it provides no remedy for the (factually or legally) innocent.
2. It effectively punishes the past and future victims of the person who would have been convicted if the evidence had been admitted for the mistakes of the police. I don’t see how a libertarian can admire a system that does that.
What there should be is a system of strict civil liability for constitutional breaches, where the damages are set high enough to make pursuing these cases economical for plaintiff lawyers.
Michael Chaney, While there may only be 1-2% “extremely bad” officers, it doesn’t make the other 98% saints. It likely sits on a bell curve of sorts, with (assuming your numbers are right) 1-2% of them being letter-of-the-law following “extremely good” officers, 10% or so “pretty good” and 10% “pretty bad”, etc. I would, of course, want to see the “extremely bad” ones go, but would want to see the “pretty bad” ones gotten rid of as well. And that would probably have a bit more impact in staffing.
I’m not sure that would be a bad thing though; it might mean fresh blood, or it might mean fewer officers and potentially a change in the department’s emphasis. Of course, it might also mean the “pretty bad” officers just shuffle between departments as well…
You are probably right about the morale of the remaining officers; I would go one further step and say it would encourage the mediocre ones to lean toward being more law abiding.
My tongue-in-cheek solution: If the officer violated someones rights like this, arrest him/her for it, then go search their house for illegal whatever. Be sure it is a very thorough, intensive, disruptive search.
Less tongue in cheek: How about a law that treats rights violations as a criminal offense? How much jail time? Can we ensure it is a federal offense, and cannot be plead down to a misdemeanor? I know, I know, that’s a steep slippery slope as well…
The same Supreme Court that says that aggrieved criminal defendants have civil remedies for the cops unconstitutional behavior is the one that makes it more and more difficult to sue or have a meaningful money judgment against the municipal agency in a 1983 suit. For instance, strengthening immunities for municipalities (Pitts).
The State of Virginia has standing as plaintiff in the original criminal case: State of Virginia vs. Some-Poor-Slob. The case is in the U.S. Supreme Court because it involves a question of Federal Constitutional interpretation. The federal question is the interpretation of the fourth amendment’s exclusionary rule, which applies to the State of Virginia through the fourteenth amendment and case law.
Speaking of “police professionalism,” I’m surprised you’re not all over this story: “SHOCK: Wayne, N.J. Police Lose MP5 Submachine Gun”
A large portion of the laws are wrong and should not be enforced. The “guilty” should go free.
The greatest danger to freedom is the power of the state. There should be constitutional change so that a private person can criminally (in addition to civilly) prosecute government officials for there official actions, whatever they may be. Soveriegn and legislative immunity should be abolished and there should be stiff mandatory minimum prison sentences for government officials including prosecutors and law enforcement officers who violate the Constitution and people’s rights.
“The fact is- and I believe that Radley’s volume of work would bear this out- that there are extremely few bad officers, maybe 1-2% tops. The real problem is the blue wall of silence which results in the other 98-99% effectively sticking up for the criminals (and, that’s what they are, let’s not mince words) when they’re exposed.”
If sticking up for violent criminals is what a ‘good’ cop does, then the ‘bad’ cops are only the slime on the rot, rather than the problem itself.
Seriously, though, don’t you think cops today are many orders of magnitude more professional than in the 50s. The “fifth degree” is no longer routine, there are Miranda warnings, there’s the exclusionary rule, and the number of shootings (both in raw numbers and per capita) are half or more what they were in 1970. So, yeah, you can stirng together anecdotes about rogue cops all day long, but the times are very different . . . and better for civil liberties.
Prof Challenger,
That still makes no sense, since it is the legal right of the state legislature to pass legislation that regulates the state’s law enforcement officers beyond the dictates of the 4th amendment. Are you saying that the state legislature does not have the sovereign authority anymore to pass regulations that go above and beyond the minimum standard of the 4th amendment?
No. But when you bring an appeal and allege a federal constitutional basis for the appeal, then once you exhaust your state’s appellate process you can bring the federal claim to the supreme court. That’s just how it works.
With respect to your question about states not being able to give more protections than the federal government. In the eighties-nineties “War on Drugs” California passed Proposition 8 which says, in essence, essentially that you have no constitutional rights conferred on you by the federal constitution other than as it is has been and will be applied by the federal courts. Virginia may have done the same.
Prof