New at Reason

David Weigel | June 27, 2006

Cathy Young stages a raid on the five justices who decided the wrong way in Hudson; and of course, the raid accidentally ends with the beating of the other four justices.

Comments

|6.27.06 @ 9:05AM|#

Cathy Young stages a raid on the five justices who decided the wrong way in Hudson; and of course, the raid accidentally ends with the beating of the other four justices.

David Weigel wins the award for best post of the day. And yes, I am well aware that it is still early in the day.

|6.27.06 @ 9:09AM|#

[Scalia] argues that while 50 years ago abusive police tactics were common and few remedies were available, the situation today is markedly different: Police forces are much more respectful of citizens' rights, and there are far more recourses to civil rights litigation.

Why does this reasoning strike me as the equivalent of the "crime rate is down and yet prisons are still full" argument?

digamma|6.27.06 @ 9:15AM|#

That is one of H&R's better article intros in a while.

Pete Guither|6.27.06 @ 10:33AM|#

Cathy Young, like Scalia, ignores the real value of the exclusionary rule. Of course it's not a "reward" for individuals whose rights were violated, and it's silly to even look at it that way.

The exclusionary rule is a deterrent. When a bad guy goes free because of it, the police say "Wow, that really sucked! Let's make sure that doesn't happen again." And so they sit down and try to do it right the next time. And they make sure they follow the law.

That's what protects innocent people, and it's the value of the exclusionary rule that Scalia ignores (and Young gives him a free pass on calling it a remedy rather than a deterrent).

grylliade|6.27.06 @ 1:11PM|#

When a bad guy goes free because of it, the police say "Wow, that really sucked! Let's make sure that doesn't happen again." And so they sit down and try to do it right the next time. And they make sure they follow the law.

What color is the sky in your world again? As far as I can tell, when a bad guy goes free because of the exclusionary rule, the cops say, "Wow, that really sucked! That guy that we just know was guilty got off scot-free. We'll have to make sure that we cover our tracks better next time." So they sit down and figure out ways to plant evidence, or to make it a case of their word against a criminal's, or any of a million other tactics that police can use to make an illegal search or seizure look legal. In the meantime, law-and-order politicians lobby to change the laws so that the police don't have to break the law to convict those that they just know are guilty. And judges like Scalia aid and abet the whole process.

The exclusionary rule is better than nothing, but it's not as good as punishing cops who break the law. "Good faith" exemptions seem like a good idea, but in reality allow police to break the laws they are supposed to enforce with impunity.

Robert|6.27.06 @ 2:46PM|#

As far as I can tell, when a bad guy goes free because of the exclusionary rule, the cops say, "Wow, that really sucked! That guy that we just know was guilty got off scot-free. We'll have to make sure that we cover our tracks better next time."

If the cops are that much ill-willed, the cops say, "The guy we know was guilty got off scot-free. Who the fuck cares?"

Either the cops are interested in justice or not. If they're not interested in justice, none of this matters, and they'll just do whatever's easy while appearing to keep busy. If they are interested in justice, they'll act justly regardless of what the technical requirements are.

|6.27.06 @ 5:28PM|#

Ms. Young is incorrect to suggest that the knock and announce rule is not required by the Fourth Amendment--it has been so recognized by the Supreme Court since 1995. If a failure to knock and announce were merely the breach of a common law duty, it would not be actionable under 42 U.S.C. � 1983.

The question in Hudson was what remedy should apply to the police's failure to abide by the rule--a failure which in that case was conceded. The Court concluded that exclusion of evidence is not required.

This is potentially important in the context of a civil action for damages. A citizen who has been convicted based upon evidence gathered pursuant to the unlawful entry cannot show prejudice. What would (s)he claim? That, if police had knocked and announced their presence, there would have been time to flush and the criminal defendant/civil plaintiff would not have been convicted?

OTOH, someone whose premises were searched and nothing found in a no-knock raid can plausibly claim that, had police knocked and given a reasonable time to respond, the occupant would have admitted the police to the premises and avoided the trauma of a forced entry. That kind of claim could result in an award of more than nominal damages plus attorney's fees.