When Cops "Forget"

Glenn "Instapundit" Reynolds, a law prof at University of Tennessee, takes umbrage in The New York Post at the recent Supreme Court ruling in Herring v. United States:

According to Chief Justice John Roberts, writing for the majority, "When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply."

You can see their reasoning. Herring's a bad guy. Why punish the police by letting a guilty man go free when they just made a simple mistake?

Except that the rest of us enjoy no such immunity. If you're a citizen who, say, accidentally carries a gun into a designated "gun-free" zone, the Supreme Court will not say that you can escape punishment because your action was "the result of isolated negligence." For citizens, there's no "I forgot" defense.

"Cynics," concludes Reynolds, "might be forgiven for thinking that, instead of a government of, by and for the people, we've got a two-tiered system in which 'public servants' instead enjoy the privileges of 'public masters.'"

Whole thing here.

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  • ev||

    pure hilarity!!!

  • Guy Montag||

    Except that the rest of us enjoy no such immunity.

    Not quite all of the rest of us. If you are an Obama appointee who did not pay his taxes on time then all is also forgiven.

    BTW, my son had Dr. Reynolds for a class this semester. This relieves me a bit of the shame of stigma of having a future lawyer in the family.

  • ||

    WTF? Reynolds has been one of the most irritating pro-Bush, pro-presidential-power-at-all-expense writers out there. Did Obama's election suddenly give him second thoughts?

  • Elemenope||

    What. The. Fuck.

  • Paul||

    I read about this earlier today. Aside from Kelo, I can't think of a more wrong-headed ruling by the Supreme Court in a long time. Think of the implications.

    Cops "accidentally-on-purpose" raiding the wrong house that, you know, they just couldn't get a search warrant for and WHOA! what's this we found in your shoe box that A: Wasn't in the house specified on the warrant and B: Wasn't an item specified to be searched for on the warrant. But it can't be excluded because... it was a mistake... and all.

  • ||

    "I forgot"--all part of that new professionalism we've heard so much about.

  • Paul||

    I give you the first sentence of the Port Huron Statement, written by Students for a Democratic Society:

    We are people of this generation, bred in at least modest comfort, housed now in universities, looking uncomfortably to the world we inherit.

  • Paul||

    "I forgot"--

    It's the catchphrase of the 2000's!

    "I forgot" is the new "I was following orders".

  • Guy Montag||

    WTF? Reynolds has been one of the most irritating pro-Bush, pro-presidential-power-at-all-expense writers out there. Did Obama's election suddenly give him second thoughts?

    You must be thinking of a different guy. Or, perhaps, reading Dr. Reynolds through a biased political filter.

    Note: earlier post change had to has.

  • gmatts||

    "When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply"

    And so did John Roberts decree.


    So if some police officer is negligent, or just plain ignorant, when it comes to constitutional restraints that prohibit him/her from doing something, the police officer gets the get-out-of-jail-free card, while the person whose rights were violated gets the go-straight-to-jail card?
    It's great having strict contructionists on the Court.

  • Guy Montag||

    Back when I was a Leftoid I could see that line of thinking, giving the government the benefit of the doubt. Now that I am libertarian, notsomuch.

    Currently, in private lines of work that do not involve Constitutional Rights, I can see where the violation of a company policy can result in temporary adverse action, hopefully corrected quickly.

    However, when it is an issue of the rights of a Citizen I take great offense and wish the offender to be incarcerated rather than adding another pluspoint to his buckslip.

  • ||

    So if some police officer is negligent, or just plain ignorant, when it comes to constitutional restraints that prohibit him/her from doing something

    Considering how ignorant many cops are of the law in the first place, this is very scary.

  • Guy Montag||

    Considering how ignorant many cops are. of the law in the first place, this is very scary.

    Fixed.

  • Robert||

    You'd think this story was about manufacturing phony evidence. What's the problem with accidentally discovering evidence that truly existed?

  • cunnivore||

    Robert, The purpose of the exclusionary rule is not to protect criminals from having evidence of their crimes discovered. The purpose is to discourage police from performing unreasonable searches in the hopes that they might turn up evidence.

    This ruling allows police to conduct warrantless searches and then lie and say they meant to conduct a different search for which they had a warrant. It also moves the burden to the defendant to prove that the search was part of a "systemic error or reckless disregard of constitutional requirements" rather than an isolated error -- and good luck with that.

  • Abdul||

    Herring's a bad guy. Why punish the police by letting a guilty man go free when they just made a simple mistake?

    How are the police punished when an guilty man goes free? do they get paid less? Do they get spankings? Are they cut off from wii for a few hours?

    The whole idea that the exclusionary rule punishes police is a nonsensensical fiction. Attaching civil damages to fourth amendment violations would be a punishment.

  • ||

    The exclusionary rule isn't about "punishing the police." The police don't suffer squat.

    It's about not letting garbage evidence screw up our court system.

    Reynolds is a political hack and a shitty legal scholar.

  • ||

    Robert,

    What's the problem with accidentally discovering evidence that truly existed?

    It opens up a door a mile wide for the government to walk through.

    Oops! Would you look at that? Geez, I'm sorry everyone, but what's done is done...

  • ||

    As just one example, his silly argument that torture is a "political" issue.

  • dave||

    So as long as the cops can plausibly claim incompetence, all is fair?

    Admit it, Balko, you're part of a conspiracy to help the police avoid the exclusionary rule by making them look like the Keystone Kops, aren't you? Answer me!

  • ||

    Shouldn't the New Professionalism mean that police won't make these mistakes?

  • nobody u no and big fan of joe||

    Shouldn't the New Professionalism mean that police won't make these mistakes?

    right on joe! under obama this will not be tolerated.

  • ||

    Shouldn't the New Professionalism mean that police won't make these mistakes?

    No, no, no. This type of corrupt and/or incompetent behavior is now an offical part of law enforcement. That's why it's the new professionalism. Before, it was just ameturish, ham-fisted and slap-stick, but now, it's top-of-the-line police work.

  • ||

    Look of the bright side, fellas!

    Roberts is 53. We'll only have to put up with him for 30 more years or so.

  • ||

    "When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply."

    I can see this statement, with a little tweaking, at the core of Johannes Mehserle's appeal.

  • ||

    Jeebus, Roberts, are we now taking the position that "accidental" violations of the Bill of Rights are A-OK?

    Too pissed off to read the opinion. How many of the robed illiterates joined this opinion?

  • T||

    So as long as the cops can plausibly claim incompetence, all is fair?

    So, a devious police department would immediately cease holding training classes on the rights of citizens. I mean, after all, if the officers don't know about rights, it's no big deal.

    I wish I worked in a field where "I didn't know" was a legitimate excuse for sloppy work. Alas, I became an engineer.

  • armchairpunter||

    Love the Reynolds bashing. Way to build consensus around issues near and dear to us. Let's only have dialogue with folks as smart and pure as we are. Heaven forbid libertarian views gain a foothold among the broader populous. They wouldn't be so cool then.

  • Jordan||

    The exclusionary rule isn't about "punishing the police." The police don't suffer squat.



    He knows that. He's saying that that was the justices' reasoning.

  • DannyK||

    I think it's even worse than the poster says, since it provides a positive inducement for the police to be sloppy.

    Maybe this is what the TSA No-Fly list is really all about: if you have a big enough list of suspects, and you never take anybody off the list while you keep adding people for unclear reasons... eventually you have a list of "suspicious people" that covers everybody in the phone book.

    At that point, the Fourth Amendment becomes purely ornamental, sort of like the little umbrellas you get in your cocktail glass.

  • Dave W.||

    A reward for negligent behavior. I would laugh if I weren't weeping. Future generations will now that Generation Jones were a bunch of idiots.

  • Dave W. corrections||

    now = know

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