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Scalia's "New Professionalism" Comes Full Circle

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In the 2006 Hudson v. Michigan case, Justice Antonin Scalia wrote a laughable opinion arguing that the Exclusionary Rule needn't be applied in cases where police perform an illegal no-knock raid, because police departments across the country have embraced a new "professionalism," whereby bad cops are punished or fired, and victims of police excesses can file and win civil rights lawsuits. In fact, Samuel, Walker, one of the scholars Scalia cited in his opinion took to the L.A. Times op-ed page to explain how Scalia had misinterpreted his research.

I've had some fun with Scalia's "new professionalism" canard over the last couple of years, pointing to news story after news story showing that the fabled "blue wall of silence" is as sound and secure as it's ever been.

Last week, the Supreme Court heard a case from Virginia in which police illegally arrested a man after a traffic stop revealed he was driving on a suspended license. Virginia law bars police from making arrests for misdemeanor traffic offenses. In this case, the cops illegally arrested the guy, then forced him to take them back to his hotel room. There they searched him, and found some crack in his pocket, for which he was arrested and convicted.

The Virginia Supreme court threw out the conviction, explaining that evidence obtained from a search following an illegal arrest can't be used at trial. The state of Virginia appealed to the U.S. Supreme Court. From the tone of the questioning this week, it looks as if the Roberts court is prepared to rule for the state—that evidence seized in searches resulting from illegal arrests should be admissible at trial. Which means the court is well on its way to either overturning the Exclusionary Rule, or limiting it to the point where it's basically useless. Virginia's attorney general was asked if, consistent with this case, someone could be (illegally arrested) for jaywalking, then have his home searched pursuant to that illegal arrest, then have the evidence found in the search used against him at trial. He said yes.

I've argued that while the Exclusionary Rule isn't perfect, it's necessary, because it's really the only effective deterrent to Fourth Amendment abuses. History has shown us that bad cops in fact aren't properly disciplined by their departments or by prosecutors. The doctrine of qualified immunity and the tendency of judges, jurors, and police administrators to show deference to police, victims of illegal searches and excessive police tactics rarely if ever recover any damages—if their case is fortunate enough to even get by summary judgement.

Which brings me back to the Virginia case argued before the Court this week. The state of Virginia and the U.S. government (siding with Virginia against the Fourth Amendment) once again brought up the argument that disciplining and firing police officers who perform unlawful searches is a better remedy than the Exclusionary Rule.

That raised the question: What happened to the police who performed the illegal search in this particular case? NPR found the answer (listen to the tail-end of the audio). Not only were they not disciplined, one of the officers was named his city's "Cop of the Year"—the same year he took part in the illegal search.

It'll be interesting to see if Scalia writes an opinion in this case, and whether he returns to the "new professionalism" argument in explaining why the Exclusionary Rule isn't necessary.

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76 responses to “Scalia's "New Professionalism" Comes Full Circle

  1. Jesus Christ. Are we the only sane people left?

  2. In theory, diciplining cops makes more sense than the exclusionary rule. In reality, in will never work because cops have become a modern petorian guard protected by unions and the full force of the law.

    The problem with Scalia, and the entire court for that matter, is tha the has never really lived outside the classroom and the appellate courtroom. My guess is that anyone who had ever been a real prosecutor or defense attorney would have laughed out loud when Scalia made his “new professionalism” remark. Scalia probably honestly beleives that cops have embraced a new professionalism. Hey we have all seen Serpico haven’t we? The sad fact is that we cannot depend on the robed high members of the con law priesthood to defend our rights.

  3. To the extent that police are more professional and less cowboy than in 1960, it’s mostly because the exclusionary rule and other protections have made it in their interest to be.

  4. I would prefer to have the cop who violated the defendant’s 4th amendment rights to be charged and sentenced to the same punishment as the defendant, rather than have the evidence excluded. If a 4th Amendment violation is shown, and the defendant is sentenced to life in prison based on the unlawfully seized evidence, the cop who seized it unlawfully should spend life in prison, too. Yes, it also applies to the death penalty, though exclusionary rule issues don’t often arise in murder cases.

  5. Just for the record, I witnessed an incident of false arrest and excessive force in Portland OR. A civil suit about this is going to court, and I understand the two officers involved have had a total of seven lawsuits alleging misconduct and other complaints, yet both are still on routine patrol duty. Oh, and they both lied about important points in their police reports of the incident.

  6. Bruce,

    The problem with that idea is that it would create perverse incentives. If a cop is investigating a speeding ticket he would have little deterence to break the law. If was investigating a murder, he would probably not investigate at all an avoid the risk of going to the chair. I don’t think it is a good idea to create that kind of incentive.

  7. Okay, so under Bush’s new “conservative” court anybody can be arrested, for any reason or no reason at any time and then immediately their person and property is subject to search and seizure with no legal recourse?

    Is this conservatism?

    So if a cop wants to bust you they can arrest your for jaywalking, even if your no where near a road, then search you, your home, etc. for legally admissable evidence of anything?

    In other words the 4th amendment is truly 100% dead?

  8. Bye bye, 4th. It was nice having you around. I hope to see you again, but you’ve been getting weaker and weaker over the years, maybe this is a final farewell.

    I sure hope I’m wrong about this. That would be cause for a drunken carouse.

  9. Excellent work, Radley.

    Excellent point, joe.

  10. all told, scalia has to be one of the worst fucking justices of the last 100 years.

  11. Recently here in my town a cop arrested a dude after dude supposedly obstructed the cop who was citing someone else for no turn signal. The subsequent search turned up some crack. Funny thing was that the other cop’s video showed that there wasn’t any obstruction. Our wise district court threw out the evidence. The good thing is the bad cop left the town’s police department. The bad thing is he was hired on to the parish sherrif’s department. So much for accountability.

  12. “From the tone of the questioning this week, it looks as if the Roberts court is prepared to rule for the state-that evidence seized in searches resulting from illegal arrests should be admissible at trial.”

    I am not saying that is not true because I didn’t hear the argument. But, I would like to know what about the tone of the questioning makes Radly think he knows which way the Court is going to go? Further, generally questioning doesn’t mean anything in an applellate court. You never know what the judges are thinking and sometimes a judge will ask hard questions and kick around one side only to vote with the opposite side. I really think we ought to withhold judgment on this case until we actually see the opinion. Further, when the opinion does come out, I would hope Balko will post about it regardless of the outcome.

  13. I missed an F in there somewhere.

  14. I pointed out the NRP segment the other day on some other thread. It was priceless (though I can’t listen to it again right at the moment) when the interviewer asked if the police officers had been fired. I was laughing much too hard about that.

  15. John…Really

    I really think we ought to withhold judgment on this case until we actually see the opinion.

    When it COMES to judgements Against the Defendent and Pro Police/Prosecution

    U can count on
    – Scalia
    – Thomas
    – Roberts
    – Alito
    to Consistantly vote against the little guy or defendant

    If u Ask Me, when it comes to constitutional matters regarding the DEFENDANT vs POLICE…we should simply ask Kennedy

    !!! LOL !!!

  16. It’ll be interesting to see if Scalia writes an opinion in this case, and whether he returns to the “new professionalism” argument in explaining why the Exclusionary Rule isn’t necessary.

    Not a chance, baby. It’s stare decisis now, and can never be returned to again. Ever. So saith myself.

  17. This only supports the point I’ve been trying to make about the new mettle ‘conservatives’ since 1994, there is nothing conservative about them, they are authoritarians, whether it comes to torture, the nonsense about enemy combatant status, or social issues where they want the gov’t in everyone’s bedroom and doctor’s office…

  18. Radley – thank you for such interesting posts.

    Respectfully,

  19. “Virginia law bars police from making arrests for misdemeanor traffic offenses. In this case, the cops illegally arrested the guy, then forced him to take them back to his hotel room. There they searched him, and found some crack in his pocket, for which he was arrested and convicted.”

    It’s this, “I’m the lawgiver” attitude among LEO’s that describes Scalia’s “New Professionalism” perfectly.

  20. who cares? you people refuse to support anyone who would change it so why bother worrying.

    oh wait I forgot the LP party! roflroflorrfl

    jokers

  21. AAAADDDDDRRRRIIIIAAAAAAANNNNNN.

    BLARHGJD FKLJEUGN LP LP HRNSFGNE!!

  22. Various and sundry posters have lately declared their defection from here. Even if I shared their reflex, which I happen not to, RB would keep me glued to this screen. Thank you again.

  23. Good point Alice. Why waist the time and energy of the rest of the Supreme Court on Constitutional matters. Have Anthony Kennedy deside all matters for us.

  24. In this case, the cops illegally arrested the guy, then forced him to take them back to his hotel room.

    They forced him? What force was involved? IANAL, but being arrested on the street does not give the police the automatic authority to search your place, does it?

    I mean, obviously the police were way out of line and the evidence should be excluded anyway, but it seems to me the guy could have simply refused to bring them back to his room.

  25. AWWWWWwwwwwwwwwww FUCK. The exclusionary rule is not the preferable way to combat police misconduct, but it is the only (partially) effective countermeasure. If it’s overturned this country is going to take a giant step towards being a police state.

  26. Alice,

    That is just not true. I would point to the decision upholding the right to a jury trial sentencing as evidence. You may disagree with Scalia, maybe you don’t think people have a right to a jury trial, but to say that he is always anti-defendent is just bunk.

  27. The score so far:

    Amendment I
    Amendment II
    Amendment III
    Amendment IV
    Amendment V
    Amendment VI
    Amendment VII
    Amendment VIII
    Amendment IX
    Amendment X

    Great going guys! You’re almost there!

  28. Never mind, I just RTFA, and they found the crack in his pocket, not his room, so my point didn’t matter.

  29. What dumb cops. They should have just said that he became combative, and arrested him for assaulting an officer. These guys have some work to do if they want to become really good dirty cops. This was just lazy.

  30. – Thomas

    Pay more attention.

    He’s the nearest thing to a libertarian on the Court that there’s been since before FDR’s packing.

    Even when he sides with Scalia, his reasons are different, Constitutional, couched in wishes that precedent were more in favor of liberty, and often include advice to future complainants on how to frame their cases to elicit friendlier rulings.

    He’s alone up there.

  31. From the audio account, it sounded like Scalia was skeptical of the state’s claims. Too bad the question of whether the state actually implemented its substitute remedy of firing cops who do illegal arrests didn’t come up during the actual arguments.

  32. There’s an error in your post, Radley. Scalia’s opinion as to professionalism was the opinion of the court, not a concurrence.

  33. I think Amendment 3 is safe, if only because we’re going to be “in time of war” for the remainder of eternity, and under those conditions Congress is free to force people to quarter soldiers.

  34. crime – your point kinda does matter, though, in that when the POleese are talking to you, it can be intimidating to the average “civilian,” and even if you abstractly think you know soem of your rights, you can be flustered into insecurity and compliance “lest a worse thing befall you.” Cop vs. citizen is a very uneven playing field, and saying No to what they want may not seem a good idea even if your only goal is to go about your licit business.

    You’re right, of course, that civil liberties exist de jure.

  35. John,

    I totally disagree.

    The ‘loosie goosies’ members of the court will vote AGAINST the state on this one, the ‘Khmer Rouge’ members of the court will vote FOR the state…and Kennedy will b the deciding vote.

    Someone earlier mentioned that our Supreme Court Members don’t live in the real world…I have 2 say that this must b true.

    I do believe in jury trials…but u must admit…had this NOT been a ROBERTs Court…Virginia would have NEVER APPEALed.

    Any matter AGAINST the DEFENDANT with this current court is a SLAM DUNK for the Police/Prosecution.

  36. “”Too bad the question of whether the state actually implemented its substitute remedy of firing cops who do illegal arrests didn’t come up during the actual arguments.”””

    It should have.

    “””Any matter AGAINST the DEFENDANT with this current court is a SLAM DUNK for the Police/Prosecution.”””

    Now that’s just paranoid. John is right Scalia is not 100% against defendants. Certainly he has no problem with fruits of a poisonous tree.

  37. Professionals?

    Yes. Professional thugs.

  38. I’ve always had problems with the exclusionary rule. Why should the crook get away with it? OK – his civil rights were violated, so he should be compensated in some way. But why should it take the form of getting away with a crime? This hardly seems like a just outcome, especially from the POV of the the victim (assuming there is one.)

  39. Warren said:If it’s (meaning the exclusionary rule) overturned this country is going to take a giant step towards being a police state.

    Wait, you mean it isn’t already?

  40. “Someone earlier mentioned that our Supreme Court Members don’t live in the real world…I have 2 say that this must b true.”

    That was me that said that and while I don’t always agree with Scalia, I don’t think he is a pro state robot. Love him or hate him he is a serious guy who doesn’t always give the predictable opinion.

  41. Alan – because the incentives to abuse citizens are otherwise too strong, in fact, as we repeatedly see, they are too strong as it is. Police are capable of inflicting greater damage than criminals — by definition, otherwise they wouldn’t be policing the criminals — so their restraining mechanisms must be tighter. That’s my understanding, anyway.

  42. Im Sorry John, TrickyVic, and Alan,

    I’m just living in the past.

    Perhaps u r all right. we should just simply eliminate the 4th amendment.

    Beside, with the Patriot Act and the Guantanamo Bay Thing, “Poison Fruit” & the Exclusionary Rule are no big deal to give up.

    Why shit,

    – the right to a hearing
    – the right to a trial
    – the concept of the warrant
    – habious corpus

    these are just all things of the past.

  43. I’ve always had problems with the exclusionary rule. Why should the crook get away with it? OK – his civil rights were violated, so he should be compensated in some way. But why should it take the form of getting away with a crime? This hardly seems like a just outcome, especially from the POV of the the victim (assuming there is one.)

    If the evidence obtained through illegal means would not have been obtained had the police offers followed the law, then why should it be admissible? Why should misconduct on the part of those who are sworn to uphold the law be rewarded? Sometimes, crooks are going to get away with stuff because of the rules that are in place to protect those of us who aren’t crooks from being at the whim of a corrupt LEO. That is (and should be) the cost of living in a free society.

    Once you start obtaining evidence through illegal means, and that evidence is admissible against you, why wouldn’t every law enforcement agency in the world basically forgo warrants and disobey the law to get their man. I mean, if the recourse is merely that the taxpayers get to pay some civil settlement hardly motivates law enforcement to act properly. It would be nice if LEOs who act improperly/illegally would get fired, but that ain’t happening.

    And in this case, the “victim” is the guy who was arrested for possession after being illegally arrested for a traffic violation.

  44. Alice Bowie is apparently living in a pre-9/11 world with a pre-9/11 mindset.

    Silly Alice Bowie

  45. You idiots. Scalia was talking about nude professionalism. Sheesh. Cops today exhibit ‘nude’ professionalism. (It’s Orlando’s MBI).

  46. ChicagoTom,

    Why r u concerned with ‘illegal means’?

    This court WILL rule on this and MANY CASES to follow that there is NOTHING illegal with

    – arresting anyone for anything
    – denying the right to a trial/hearing
    – confiscating any/all funds a defendant has so that he cannot hire a lawyer
    – going into anyone’s house without a warrant and jailing them for life and confiscating their home, car, bank accounts when the police find a joint in the ash tray.

  47. “””Im Sorry John, TrickyVic, and Alan,

    I’m just living in the past.

    Perhaps u r all right. we should just simply eliminate the 4th amendment.”””

    I have never advocated for eliminating the 4th amendment nor am I against the exclusionary rule. Stop being a troll.

  48. Bottom line.

    If the cops follow the law, they have nothing to worry about.

    I’m curious to see if Scalia is going to back his new professionalism in future cases where someone sues a cop.

  49. “””This court WILL rule on this and MANY CASES to follow that there is NOTHING illegal with”””

    Where did you get your SCOTUS crystal ball? I agree with John that Scalia can throw a curve.

    I believe opined that the cops are trying to get around the 4th when using infrared sensors on a house.

  50. Given the New Police Professionalism officers will only rarely conduct illegal searches, the Exclusionary Rule will exclude very little evidence, and therefore there’s no reason to overturn it. Right?

  51. As bad as the loss of the impending loss of the exclusionary is, I think the worst problem is planted evidence.

    I hope that courts start making police prove beyond a reasonable doubt that they did not plant crack.

  52. Dave W.

    u don’t understand the LAW, with all due respects.

    When a defendant is ON TRIAL…the officer will NEVER have 2 prove that the evidence was planted.

    Many defendants claim police plant the contraband all of the time.

    If, by some miracle involving god, budha, alla, jesus, george michael, and the virgin mary, and the officer is brought up on charges of planting evidence…The prosecution would have 2 prove beyond the reasonable doubt the the evidence was planted.

  53. “If the cops follow the law, they have nothing to worry about.”

    The link I provided above is an actual cop. He took that picture of himself to send to a stripper. I’m not sure if he later arrested that stripper. Nothing illegal there, just the nude professionalism.

  54. Just sprinkle some crack on the body, case closed.

  55. Thanks, ChicagoTom:
    It would be nice if LEOs who act improperly/illegally would get fired, but that ain’t happening.

    I think the whole argument really hinges on this point. If there really is no other way of punishing the police for these behaviours – and I’m not really sure why there isn’t (because they’re a bunch of [fill in the blank], that’s why, you fascist!] – then the exclusion rule is really all there is.

  56. Thank you, Radley. I love you.

  57. Yes Alan, All we have is the Exclusionary Rule.

    Even when a victim of police misconduct sues a municipality…and wins…nothing happens to the cop.

  58. Alan…the previous is from me.

    The Exclusionary Rule has NEVER deterred the police from commiting the POISON FRUIT thing.

    But, at least, the defendant runs free..and the chance of foul play by police is limited.

  59. Where did you get your SCOTUS crystal ball? I agree with John that Scalia can throw a curve.

    I would think that if they weren’t planning on ruling for the state, they wouldn’t have taken the case at all. The state Supreme Court had ruled, and the the SCOTUS had already taken other cases where they gutted the exclusion doctrine.

    I think it’s a safe bet that they took the case in order to further gut the exclusion doctrine, rather than to reinforce what the Virginia Supremes ruled.

  60. If evidence obtained illegally can be used against you in a trial, what’s the fucking point of rules anyway? Honestly, the 4th amendment is meaninglesss without the exclusionary rule.

  61. Even when a victim of police misconduct sues a municipality…and wins…nothing happens to the cop.

    To be correct, sometimes he gets promoted.

  62. Just for clarity.

    My “Where did you get your SCOTUS crystal ball? I agree with John that Scalia can throw a curve.” statement applies to the below quote, not just the case at hand.

    “””This court WILL rule on this and MANY CASES to follow that there is NOTHING illegal with”””

  63. Wait a minute. If the Virginia State Constitution contains a protection from unreasonable search and seizure, isn’t the state supreme court’s ruling final on that matter? I mean, if the SCOTUS says that the defendant isn’t protected by the Federal Bill of Rights, that would be irrelevant if the state Supreme Court ruled he was protected by the Virginia Constitution. The Incorporation Doctrine doesn’t restrict the rights given in the state constitution, it adds to them. Right?

  64. “””The Incorporation Doctrine doesn’t restrict the rights given in the state constitution, it adds to them. Right?”””

    We’ll see.

  65. Which means the court is well on its way to either overturning the Exclusionary Rule, or limiting it to the point where it’s basically useless. Virginia’s attorney general was asked if, consistent with this case, someone could be (illegally arrested) for jaywalking, then have his home searched pursuant to that illegal arrest, then have the evidence found in the search used against him at trial. He said yes.

    If that is really the case, consistent with Timothy’s comment, it is more than the Exclusionary Rule that is in danger but the entire Fourth Amendment. If any trivial violation were to give the police the legal right to search whatever they want, then they have the de facto right to search whatever they want because finding trivial violations is, well… trivial.

    I’ve been saying for a long time that this chipping away at legal protections from unreasonable searches is ultimately leading to the world that police and law enforcement generally, want: to be able to search anyone, anytime, anywhere for any reason. If the decision in this case goes for the state we are getting a lot closer to that world than even my pessimistic outlook would have surmised.

  66. Yes Brian,

    That includes
    – 56mph in a 55mph
    – Jay walking
    – various sex acts u do w/wife in privacy
    etc,etc,etc

  67. That’s funny…Brian…that’s what i said…and everyone called me paranoid.

  68. That’s funny…Brian…that’s what i said…and everyone called me paranoid.

    And you may well be. But paranoid people have some real enemies too. 😉

  69. If the Virginia State Constitution contains a protection from unreasonable search and seizure, isn’t the state supreme court’s ruling final on that matter? . . . The Incorporation Doctrine doesn’t restrict the rights given in the state constitution, it adds to them. Right?

    Well, yes, it is possible for the state constitution to offer greater protections than the US Constitution. In those cases, if the highest state court rules that the action in question violates the state’s constitution regardless of whether it violates the US Constitution, then the US Supreme Court would not have jurisdiction to overturn the state courts ruling on the state constitution.*

    An example of this, with respect to the First Amendment, is provided by the Oregon Supreme Court. Years ago it ruled that nude dancing is a protected form of expression under the Oregon Constitution regardless of whether or not it is protected by the First Amendment. That decision couldn’t be reversed by the US Supreme Court because it relied only on the greater protections of the Oregon Constitution. This, by the way, is why the Seattle Times said:

    Portland boasts more than 50 strip clubs – believed to be the most per capita of any U.S. city. Seattle has its knickers in a twist about just four.

    I don’t know why Portland hasn’t used this fact more in its tourist advertising. 🙂

    *Except to the extent that someone could argue the provision relied upon in the state constitution somehow violates the US Constitution for a different reason than merely offering greater protections – but that would be a different legal question and is not the case here.

  70. “”””Virginia’s attorney general was asked if, consistent with this case, someone could be (illegally arrested) for jaywalking, then have his home searched pursuant to that illegal arrest, then have the evidence found in the search used against him at trial. He said yes.””””

    I would imagine that there would have to be some nexus between the crime which you are arrested, and your house. Such as searching your house for a murder weapon when the murder happened somewhere else. Of course I’m talking lawful search so it’s almost a moot example.

    I think Scalia is right, but in a different way. There is a “new professionalism” in law enforcement, and Radley’s been writing much about it.

  71. Stripping makes searching unnecessary.

  72. So just wait a few minutes, Officer | January 18, 2008, 4:25pm | #

    Stripping makes searching unnecessary.

    You mean “Naked City” was just a little ahead of its time?

  73. Naked City + ahead of its time + 77 Sunset Strip + sunset laws = something relevant, but I can’t put it together.

  74. So, the question for me is this… when do liberty loving people in this country finally decide to pick up and move, en masse, to another country?? Granted, we are still better off than most countries … but, what if 10 million liberty loving people moved to Canada or Australia. We would change the political dynamic in those countries, and create a New America. I understand the Free State movement, and perhaps it should be tried here first. But I know I am only dreaming …

  75. crimethink sez Wait a minute. If the Virginia State Constitution contains a protection from unreasonable search and seizure, isn’t the state supreme court’s ruling final on that matter?

    You actually got me to do a very small bit of research on this. Turns out, Virginia does not have an “unreasonable search and seizure” clause per se in their Constitution/Bill of Rights. The appeal to the State Supreme Court was based on the violation of state law AND the 4th Amdt (that given state law, the arrest was illegal and thus tainted the evidence under the 4th). That actually is an interesting mixture of state and federal points of view. And that is why it is now a federal case. The question before SCotUS has to do with how state law ‘expands’ (or not) the protections under the 4th.

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