Topic: Law and Civil Liberties

The Exclusionary Rule

Yesterday’s ruling in Hudson v. Michigan could prove to be a landmark Supreme Court precedent. We already knew that it was an important case involving the “knock-and-announce” principle, but, as New York Times reporter Linda Greenhouse observes today, the majority opinion is so “dismissive of the exclusionary rule as to serve as an invitation to bring a direct challenge to the rule in a future case.” 

I’m afraid that may well be right. If so, it means we are moving from an important battle, which we just lost, over the knock-and-announce doctrine, to a battle royal over the Fourth Amendment generally.

For background on the exclusionary rule, go here.

WWTD?

There’s a liberal/neo-con tiff brewing over the legacy of Harry Truman. Peter Beinart gets sniffy about George W. Bush “tak[ing] Truman’s name in vain.” (Who’s Harry in that metaphor?)  Max Boot says HST, like GWB, was wonderfully unilateral: “The decision to nuke Hiroshima and Nagasaki? A unilateral U.S. initiative. The Marshall Plan to aid European recovery? Ditto.” Matt Yglesias thinks Truman was “great,” but “What Would Truman Do?” isn’t really a useful question. 

All three focus on Truman’s legacy abroad. But when you look at behavior on the home front, it seems to me that George W. Bush has as good a claim to Truman’s legacy as anyone. Domestically, HST was as unilateral as all get-out. Look at the Steel Seizure case. Facing down a nationwide steel strike in the midst of the Korean war, Truman ordered his secretary of commerce to seize the steel companies and operate them for the government. He did so using a constitutional theory that’s by now familiar. Here’s assistant attorney general Holmes Baldridge laying it out before federal district court judge David A. Pine in 1952:

Judge Pine: So you contend the Executive has unlimited power in time of an emergency?
Baldridge: He has the power to take such action as is necessary to meet the emergency.
Judge Pine: If the emergency is great, it is unlimited, is it?
Baldridge: I suppose if you carry it to its logical conclusion, that is true….
Judge Pine: And that the Executive determines the emergencies and the courts cannot even review whether it is an emergency.
Baldridge: That is correct.

Later, Pine asked Baldridge: “So, when the sovereign people adopted the Constitution, it enumerated the powers set up in the Constitution, but limited the powers of the Congress and limited the powers of the judiciary, but it did not limit the powers of the Executive. Is that what you say?” Baldridge replied, “That is the way we read Article II of the Constitution.” 

Luckily, neither Judge Pine nor the Supremes bought it.

Then there’s that minor undeclared “police action” on the Korean peninsula. Wonderfully unilateral there as well, as far as Congress goes. 

If, like Boot, you think the country suffers from insufficient concentration of power in the executive branch, then Truman’s legacy is something to fight over. But if you don’t, then “WWTD?” isn’t the right question by a long shot.

Scalia’s Alternate Universe

The following, from Justice Scalia’s opinion in Hudson, is an absolute joke:

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1989, we felt it proper to “assume” that unlawful police behavior “would be dealt with appropriately” by the authorities, but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been “wide ranging reforms in the education, training, and supervision” of police officers (cite omitted).

[…]

Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.

Scalia couldn’t be more off-base. In the book After Prohibition, edited by my Cato colleague Tim Lynch, Yale University’s Steven Duke offers an entire chapter on the way the drug war has eviscerated constitutional protections. David Kopel adds another chapter on the way it has inspired a frightening culture of militarism among our domestic police departments. Jim Bovard, in his book Lost Rights, also documents the way the “drug war exception” to the Bill of Rights has inspired police excesses. And Eastern Kentucky University’s Peter Kraska has extensively documented the way military culture has created a battlefield mindset among today’s police forces that puts winning the “war” well ahead of protecting constitutional rights. Joel Miller also documents numerous examples of the drug war’s corrupting influence on police officers in his book Bad Trip.

If Scalia wants to consult an ex-cop, he might try recently retired Seattle Police Chief Norm Stamper, who talks about the same issues in his recent book Breaking Rank. Or he might speak with the ex-law enforcement officials who’ve turned on the drug war and formed LEAP — Law Enforcement Against Prohibition.

Police are certainly more highly trained than they once were, but they aren’t better trained at observing civil liberties. They’re better trained at paramilitary tactics. They’re now trained by former Navy SEALs and Army Rangers. They’re better trained at treating civilians like enemy combatants, at taking over and “clearing” rooms in private homes, not at treating the people inside as citizens with rights.

Scalia’s synopsis is shockingly naive. He ought to look up Hearne. Or Tulia. He might look into the Dallas informant scandal, or the Miami SWAT-Internal affairs scandal, or LAPD’s multiple police scandals, including a civilian review board scandal, or the fact that New York City’s civilian review board, for example, has no jurisdiction whatsoever over — guess what? — no-knock raids. Here’s another example. Here is yet another. He might listen to this horrifying audio. These are just a few examples. They are by no means isolated incidents.

Internal affairs investigations are notoriously inept. Even in cases in which police officers were found to have committed egregious offenses, those cases were uncovered during federal investigations or during civil trials, or by journalists, or by mere happenstance — not by “internal police discipline.”

Is Scalia oblivious to “the blue wall of silence?” “Internal discipline,” as he calls it, certainly does “limit successful careers,” but not in the way Scalia portrays it. You are “disciplined” to keep quiet when it comes to abuse, excessive force, and corruption. It’s the officers who talk who eventually find their careers “severely limited.” How many examples do we need before they stop being considered anomalies?

In my research on this issue, I’ve never — not once — seen a police officer convicted of even a misdemeanor for shooting an innocent civilian in a botched raid. Very few are even subject to internal discipline. (Consider the recent case of Sal Culosi.) And it’s happened (“it” being the death of innocent as the resut of a botched raid) about three dozen times. As Justice Breyer notes in his dissent, even the state of Michigan in its brief couldn’t cite a single time a police officer has successfully been sued for conducting an illegal no-knock raid. On my personal website, I’ve kept a running list of SWAT-like raids gone bad. It’s a depressingly long list.

In sum, police aren’t better trained at respecting civil liberties, they’re better trained at finding ways to get around them. The ratcheting up of the drug war in the early 1980s has made police abuse of civil liberties routine. And let’s be clear: It is bad policy that has created this mess. Bad policy from politicians, regulators, and judges who continue to cling to the belief that if we give police just a few more drug-fighting tools, we’ll lick this “drug war” thing for good — despite an overwhelming amount of evidence to the contrary.

Scalia’s pronouncement that we’ve entered a new era of police respect for civil rights is so far off-base it’s laughable.

I can stomach a decision that doesn’t go my way. But it ought to be grounded in reality.

The Fourth Amendment as Legal Fiction

Conservative lawyering has aspired to create rules that restrain the ad hoc policymaking power of judges. The idea is that judges, ensconced among leatherbound books in oak-paneled chambers, don’t make good legislators. They can’t assess changing facts on the ground or balance difficult policy tradeoffs. What’s needed, conservative legal theorists tell us, is a set of clear rules, grounded in legal tradition, that lets us know where courts stand.

Justice Scalia’s opinion in Thursday’s announced decision of Hudson v. Michigan guts that aspiration in the realm of the Fourth Amendment. The case is about remedies for violations of the knock-and-announce rule. The rule is pretty easy to describe: When the police serve a warrant, they must knock, announce, wait… then enter. The rule is an ancient one, with a high originalist pedigree.

In Hudson, the cops broke the rule. They announced. They didn’t knock and they didn’t wait. So what’s the remedy? The Court’s answer (lawyerly “ifs,” “buts,” and “maybes” aside) boils down to: There is no remedy. Or, perhaps, more accurately: We don’t care if there is a remedy.

The traditional remedy for Fourth Amendment violations is suppression of evidence obtained as a result of the violation (the exclusionary rule). The best reading of Hudson is that exclusion is never, or very rarely, appropriate if police don’t knock and announce.

Suppression isn’t needed as a deterrent, says Scalia, because, unlike the bad ol’ days when Justice Scalia was a young’un, we can assume that in our enlightenend modern legal system, civil liability will be an adequate deterrent. (I oversimplify only slightly.) No empirical evidence is provided for this claim. The evidence that does exist — such as my Cato colleague Radley Balko’s study of abusive warrant service by militarized police — goes the other way.

The result: An originalist constraint on police entry is recognized on paper, but left unenforced as a matter of breezy, factually unsupported judicial policy that would make even Justice William O. Douglas blush. As Justice Breyer says, the majority’s argument is, in essence, “the [knock-and-announce requirement] is fine, indeed, a serious matter” — wink, wink — “just don’t enforce it.”

Rigths grounded in originalism backed with real remedies: That’s an interpretive method with the courage of conviction in the outcomes it produces. It’s an interpretive method that forces clear, serious judicial thinking because it doesn’t shrink from the consequences of interpretation. Scalia’s opinion, by contrast, is “let’s pretend originalism” — a Potemkin fidelity to the old ways, robbed of any force by a deceptive, lawyerly slight of hand. 

If there’s a legal method more prone to abuse by outcome-oriented judges, I can’t imagine it.

Spending Limits Are Not the Answer

David Primo and Jeff Milyo have just published an op-ed in Roll Call. Advocates have long argued that restrictions on campaign spending, which can be direct spending or contributions, enhance electoral competition. In Vermont they convinced the state legislature to pass spending limits, the constitutionality of which are now before the U.S. Supreme Court. Primo and Milyo correctly note “the most current and best scientific evidence flies in the face of the promises” made by these advocates. Indeed, “the court jurisprudence upholding campaign finance laws is built on a shaky empirical foundation.” They continue: “In fact, we are aware of no scholarly studies that yield consistent evidence of large and statistically significant effects of campaign finance regulations on electoral competitiveness.”

I go into the shaky philosophical and empirical foundations of campaign finance law in my upcoming book, The Fallacy of Campaign Finance Reform.

Supreme Court Gets it Wrong in Hudson

The Supreme Court just ruled 5-4 that police who conduct an illegal “no-knock” raid on a citizen’s home can use evidence seized from that raid against the suspect at trial.

Taken with the high degree of immunity from lawsuits courts and lawmakers have given to police officers in these cases, there is now no real penalty for police who ignore the legal requirement to knock and announce themselves before forcibly entering a private home.

We can expect the already disturbing trend of military-style police raids on American citizens to get substantially worse.

Last April, I wrote a synopsis of what’s at stake in the Hudson case for Slate.