'How the Supreme Court Protects Bad Cops'


Writing at The New York Times, Erwin Chemerinsky of the University of California, Irvine, School of Law, takes aim at the U.S. Supreme Court for its key role for making it "very difficult, and often impossible, to hold police officers and the governments that employ them accountable for civil rights violations. This undermines the ability to deter illegal police behavior," he added, "and leaves victims without compensation."

As evidence of this sorry state of affairs, Chemerinsky points to the Supreme Court's unanimous 2014 opinion in Plumhoff v. Rickard, in which the justices granted qualified immunity to several police officers who used lethal force to stop a high-speed car chase. That chase began with a routine traffic stop for a busted headlight and ended roughly 10 minutes later with the officers firing 15 rounds into the vehicle, killing both the driver and his passenger, neither of whom were armed. According to the Court's decision, this deadly use of force was fully permissible. "If police officers are justified in firing at a suspect in order to end a severe threat to public safety," the Court held, "the officers need not stop shooting until the threat has ended."

Chemerinsky describes this ruling as "deeply disturbing":

The Supreme Court now has said that whenever there is a high-speed chase that could injure others — and that would seem to be true of virtually all high-speed chases — the police can shoot at the vehicle and keep shooting until the chase ends. Obvious alternatives could include shooting out the car's tires, or even taking the license plate number and tracking the driver down later.

He's right. The justices revealed little interest in calling aggressive police tactics into question in that case.

To my surprise, however, Chemerinsky failed to mention one of the starkest recent examples of bad cops enjoying a legal victory: the Supreme Court's 2006 ruling in Hudson v. Michigan. In that case, a divided Court ruled that evidence obtained by the police after "a concededly illegal" no-knock raid was still admissible in court. "Resort to the massive remedy of suppressing evidence of guilt is unjustified," declared the majority opinion of Justice Antonin Scalia. Furthermore, Scalia added, the "increasing professionalism of police forces" around the country is itself a strong internal check on law enforcement that "deters civil-rights violations."

To say the least, Scalia's words have not aged well. As my former Reason colleague Radley Balko has observed, "a scan of recent headlines suggests that when it comes to holding police accountable for botched raids, excessive force, and misconduct, Scalia's 'new professionalism' is nowhere to be found."