Last Hope for Fourth Amendment Hangs by a Thread; Weekly Standard Rejoices

Over at the Weekly Standard, William Tucker notes gleefully that the exclusionary rule is but one Bush Supreme Court appointment away from extinction.

Tim Lynch’s 1998 Policy Analysis is about all you’ll need to thoroughly refute Tucker’s general thesis. But two specific passages in Tucker’s broadside on the Fourth Amendment are worth addressing:

What makes the exclusionary rule so absurd is that it only protects people who are guilty of crimes. If the police come to your house, knock down your door, ransack your home, throw all your belongings in the street, and find no incriminating evidence, then the exclusionary rule offers you no compensation whatsoever. Only if evidence turns up that shows you to be guilty of something are you rewarded.

This argument – that the exclusionary rule “only protects the guilty” – is a common refrain on the right. Strictly speaking, Tucker’s right. Once the scenario he outlines has taken place, the exclusionary rule offers no remedy. But Tucker and critics like him ignore the rule’s deterrent value. The exclusionary rule helps ensure that fewer of those incidents happen in the first place.

If police know in advance that evidence gathered from ill-conisidered searches performed without adequate investigation won’t hold up in court, they’re more likely to take the necessary precautions to ensure that bad searches don’t happen. That means fewer scenarios like the one Tucker lays out, and fewer of the all-too-real incidents that clutter this map.

Tucker also bites on Justice Scalia’s canard about the new police professionalism, and the new mechanisms we supposedly have in place to deal with police excess:

In pointing out how dated the exclusionary rule has become, Justice Scalia noted both the “increasing professionalism of police forces” and the ease with which aggrieved citizens can now pursue other remedies against the police for the violation of their rights. “Citizens whose Fourth Amendment rights were violated by federal officers could not bring suit until 10 years after Mapp,” Scalia noted. Since then, “Congress has authorized attorney’s fees for civil-rights plaintiffs… . The number of public-interest law firms and lawyers who specialize in civil-rights grievances has greatly expanded… . [E]xtant deterrences against [Fourth amendment violations] are … incomparably greater than the factors deterring warrantless entries when Mapp was decided. Resort to the massive remedy of suppressing evidence of guilt is unjustified.”

As any civil rights attorney will attest, the barriers to bringing a federal lawsuit agianst a police officer, police department, or city are enormous. The qualified immunity we give individual officers and the sovereign immunity granted to government entities they work for – immunities Scalia has helped broaden – make such suits nearly impossible in all but the most egregious cases. Even then, it’s tough to find a lawyer willing to risk the time and energy to bring a suit that’s likely to be thrown out of court before ever reaching trial.

Throughout the 1990s, New Yorkers on the receiving end of “wrong door” raids like the one Tucker describes weren’t even compensated for the damage done to their homes, much less for the needless terror and fright they suffered. After the “wrong door” raid that ended in the death of innocent city worker Alberta Spruill in 2003, the city instituted some reforms, but has already begun to renege on its promises.

In many cities, the entire warrant process – from the shady informant’s tip to breaking down the suspect’s door – takes only a matter of hours. The judges we entrust with oversight have largely turned the warrant process into a rubber-stamp exercise. And when these lax procedures do result in tragedy, public officials clam up. Transparency and accountability give way to CYA and damage control.

There are some 40,000 paramilitary police raids conducted each year in America, and that number is rising. Given the high stakes and low margin for error associated with such tactics, we need more assurance that police are doing everything possible to ensure they have the right suspect, not less. The coming death of the exclusionary rule should be mourned, not celebrated.