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).

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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.