May 22, 2007 11:44AM

Defining Misconduct Down

When the police search an innocent person, there will be no criminal case. So no criminal court judge will review the legality of the search. Even putting aside the airport searches, there must be tens of thousands of such ‘innocent searches’ each year. In this category of cases, the only real “check” on unlawful police conduct is a civil lawsuit. As a practical matter, in most cases, the party aggrieved is not going to bother to hire a lawyer to sue the police because he was roughed up or whatever. In a small percentage of cases, the party aggrieved will incur legal expenses and pursue the case. But the Supreme Court is increasingly hostile to such lawsuits. Excerpt from today’s LA Times:

In December 2001, Los Angeles County sheriffs were looking for four black suspects in an identity‐​theft scheme. One of them was known to have a gun. When the deputies set out to raid a home in Lancaster, they did not know the suspects had moved three months earlier. Rettele had bought the home in September and lived there with Sadler and her 17‐​year‐​old son.

At 7 a.m., seven deputies with guns drawn came to the door and were let in by the teenager. He was ordered to lie face down.

The deputies then entered the bedroom and ordered Rettele and Sadler to get up and to show their hands. They protested they were not wearing clothes, but the officers insisted they stand naked next to the bed for a minute or two.

After a few minutes, the deputies admitted they had made a mistake, apologized and left. …

Without bothering to hear arguments in the case, the Supreme Court agreed and ruled for the deputies. …

John Burton, a Pasadena lawyer who represented the plaintiffs, said his clients had left California and were living in Kansas.

“I think this means we are in a dark period for the Supreme Court,” Burton said. “This was a case of incompetent officers finding themselves in the home of completely innocent people, and knowing they are not suspects, orders them out of bed stark naked. This is bullying, and it needs to be reined in.”

I agree. The government lawyers say the deputies “didn’t know” the suspects had moved three months earlier. Well, they should have. This is the distressing trend–too often the police are skipping the investigative work and raiding homes. Conservatives usually say, “well, if the police run amok, people can sue.” Here, the Supreme Court said the couple’s claim is so weak that it should not even be argued before a jury. And the high court did not even bother to have attorneys fully brief and argue this matter before them. This action sets the tone for future lawsuits.

As I said, most innocent people will let police misconduct (non‐​severe) go. They will not even consult an attorney. After this ruling, the subset of aggrieved individuals who do meet with an attorney may be told that they would just be wasting their time and money … that their case will very likely just get tossed out of court. 

Bottom line: if police misconduct goes unchecked, we will get more of it.