Scalia's "New Professionalism" Comes Full Circle


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.