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

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?

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.

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 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.

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…

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.

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.)

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.

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?

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.