A reply to Radley Balko on the Hartes case

|The Volokh Conspiracy |

I recently wrote a response to a Radley Balko column about a Kansas drug raid and a legal decision it produced. I wanted to flag and reply to Balko's response. I'll assume readers are familiar with the first round of posts, and I'll focus here on round two.

Balko's response is long and worth reading in full. Here's an excerpt that I think gives a good flavor of his defense to my criticism:

Yes, someone viewing this case through the perspective of the police could have written a headline like, "Federal judge: Police not liable for relying on faulty field tests." That would have been quite a bit different from my headline. And like my headline, it would also have been accurate. I chose to emphasize what happened from the Hartes' perspective, because I find what happened to them to be outrageous, and that's what I think is important about this story. My point was to emphasize just how little oversight there is when it comes to these raids, how few protections are afforded to potentially innocent people on the receiving end of them, and how when things go wrong the victims of mistaken raids have little recourse, and the cops who wrongly raided them face little accountability.

The disagreement here also reflects how differently legal academics sometimes see these cases than the rest of us. In his initial post Kerr, a self-described "Fourth Amendment geek," was so focused on his very technical legal issue that he neglected to even acknowledge what happened to the Hartes, or the utter incompetence of the Johnson County Sheriff's Department. After some criticism from his commenters, he later conceded both points in an update. But until that update, you could be forgiven for thinking that Kerr believed the only real outrage in this story was my headline, and the only real victim was Judge Lungstrum. It was a classic example of missing the forest for the trees, only I'm not at all convinced he was right about the trees.

Exchanges like these are common in online commentary about these issues. Someone will write about what they believe to be an outrageous example of police or prosecutor misconduct, only to be corrected by a legal scholar, who will then calmly and somewhat condescendingly explain how the police or prosecutor in question was acting entirely within the law, complete with strings of citations to court opinions. But that's almost always beside the point.

To be clear, I don't think Judge Lungstrum's ruling was wrong on the law, nor did I state or imply as much in the post. (Although as is often true in these cases, and for the reasons I'll lay out later in this post, I think Lungstrum could also have written an entirely justifiable opinion that allowed that Hartes to proceed with their lawsuit.) It is the law itself that is the problem.

I agree with Balko that we are focused on different things. He is focused on assessing the investigation as a whole. In contrast, my interest is only in accurate reporting about the legal decision. I get that many people share Balko's broad emphasis, and that they see mine as nitpicking. But there shouldn't be a conflict between the two perspectives. After readers understand what the judge actually ruled, they may still be deeply outraged by the investigation. For some, their outrage may burn even brighter. And that's fine with me. I just want to make sure readers aren't making judgments about what happened based on a misunderstanding of the ruling.

Balko argues that his description of the legal decision was accurate if you decide to view the facts from the perspective of the victims. As Balko presents it, he made an editorial choice to describe the facts as they were known to the Hartes family rather than as they were known to the police. In his view, that perspective brings out the important truths of what really happened.

I think that's a completely fair way to describe what happened, with one important caveat: It's not a fair way to describe the legal ruling in the case. The problem is that the Fourth Amendment itself takes a perspective. The Fourth Amendment requires that warrants must be based on probable cause as presented to the judge before the search occurs, not that the police only search guilty people as becomes known after the search occurs. That's the fundamental idea of probable cause. You look at what was reasonable to believe based on the facts known to the officers beforehand. Whether the police turned out to be right or wrong, as viewed with the benefit of hindsight, is irrelevant to the Fourth Amendment question. As I see it, this means you can't just decide to take the perspective of the victim when explaining the court's ruling. The victim knew what the police didn't know. Taking the victim's perspective means having the omniscience that the concept of "probable cause" rejects.

Balko also suggests that I miss the big picture on the Fourth Amendment because I only look at existing Fourth Amendment law, "which has failed to protect our rights." According to Balko, the drafters and ratifiers of the Fourth Amendment would have rejected the idea of drug raids like this:

Given the history of and debate around the ratification of the Fourth Amendment, it's difficult to see how the men who drafted and ratified it could ever have envisioned a day in which soldiers (and that's how they'd see today's tactical teams) could force their way into a private home, then hold its occupants under armed guard and rifle through their belongings, all because they had some reason to believe that they may have been growing a forbidden plant.

We're veering pretty far from my original post at this point. But for what it's worth, I'm less confident than Balko is that we can know what the drafters and ratifiers of the Fourth Amendment would have thought about SWAT-style drug raids. The historical materials on the drafting and ratification of the Fourth Amendment are sparse. We know that one clear intent of the Fourth Amendment was to prohibit general warrants. But beyond that, the broader scope and aims of the drafters and ratifiers of the Fourth Amendment are often frustratingly uncertain. Given that, I think it's difficult to get very far by imagining the reaction of the framers.

For example, if we try to imagine what the framers would have thought of SWAT-style drug raids, wouldn't they have wondered why the Fourth Amendment was being considered at all in a state case like this? Many states at the time of ratification allowed general warrants by state officials. The idea of applying the Fourth Amendment to state officials did not come until long after its ratification (and it wasn't adopted by the Supreme Court until 1949). Would the drafters and ratifiers have focused on that? If not, what kind of concept of probable cause did they have, so that we can know what they would have thought about field tests? I don't think we know. As I see it, the historical record is too uncertain, and modern circumstances too different, to make useful conclusions.

Finally, I hope the narrow focus of my first post doesn't suggest that I agree with the Fourth Amendment law that the court applied in this case. In a world of widespread officer indemnification, I'm skeptical that qualified immunity makes sense. I'm also not sure it makes sense to apply the Franks v. Delaware framework to civil lawsuits, and especially omissions, given that Franks was a case about the scope of the exclusionary rule. And I wonder: If the Hartes had made their cause of action trespass rather than 42 U.S.C. 1983, should qualified immunity still apply given that there was no qualified immunity doctrine in cases like Entick v. Carrington? I didn't focus on those things in my earlier post because I intended my post to be narrow. I hoped to just explain Lungstrum's decision for those who may have misunderstood what it ruled.

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