22 June 2006

Police Gone Wrong

It's all fine and dandy for Scalia to talk about improved professionalism among police forces and how that justifies walking away from traditional protections of your rights. It's just another indicator that he really has no clue about anything in the criminal justice system. It's not the 95% of officers who are doing their job honestly and with the highest level of professionalism that the Constitution is meant to protect us from. The Constitution is meant to protect us from officers who are cutting corners, pushing limits, following improper orders, or just acting out-and-out illegally.


Anonymous said...

What you and other commentary (the New York Times editorial on this issue, for example) choose to ignore is the key fact -- that law enforcement officers in this incident had a valid search warrant for the premises searched. Add to that the fact that the evidence seized was the same evidence described in the warrant, and the decision doesn't seem to do great violence to the letter or the spirit of the Fourth Amendment.

Oh, and as for your nightmare scenario with cops gone bad. Well, guess what -- they wear uniforms and carry guns, so if they're going to go bad, no law on the books or decision of the highest court in the land is going to stop them. The key here is to have systems in place which can deal with inevitable police misconduct, and I would agree that more work needs to be done in that area. But to link that issue to the very narrow decision handed down by the Court in Hudson seems a bit heavy-handed.

Ken Lammers said...

You're right, the case from CATO was heavier than needed for this point. Therefore, I moved it to its own post.

Personally, I don't have a lot of heartburn over this case. I've never really been sold on the knock and announce because I don't think it accomplishes anything and have serious doubts about how it is done.

Reread Scalia's defense of why this is okay. It's full of absolutely ridiculous assertions. He raises the old, and extremeley cynical, canard about civil remedies. Anyone who has spent any time in the criminal justice system knows that this argument is steaming pile of garbage. It's a disengenuous argument made with the full realization that it provides no actual remedy and will not effect the way law enforcement acts. It's meant to give cover to attempts to stop an actual punishment (exclusion) which will force law enforcement to actually act according to the laws and constitution.

Second, the police professionalism argument is absolutely bogus. First, there is no way you can apply that argument universally; law enforcement professionalism will vary greatly from locale to locale and time to time. Second, part of the fabric of all this professionalism is pushing constitutional limits and circumventing the constitution when possible. Why? Because their job is to catch the bad guys and the more holes which are punched in the constitution the easier that job is. Mind you, as I have stated several times on this blawg, I don't blame police officers for this. I lay the blame for this squarely where it belongs: the courts - in particular the appellate courts - which are the only force which truly oversees police activities in civil liberty areas.

It's a terrible argument, the kind I would have expected from someone just out of law school who has drank the koolaid. If I didn't believe all those stories of Scalia writing his own opinions I'd swear this was written by a very inexperienced clerk.