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Brett Kavanaugh's Soft Spot for Police Abuses

The SCOTUS nominee takes a dim view of the Fourth and Fifth Amendments.

The history of liberty in America features an endless battle over the rights of individuals versus the powers of police. The Constitution was written with the intent of protecting citizens and controlling cops. But that's not quite in keeping with the preferences of Brett Kavanaugh.

Donald Trump's Supreme Court nominee made his views clear in a lecture paying tribute to the late Chief Justice William Rehnquist, delivered last year. What Rehnquist saw as one of his biggest achievements, Kavanaugh noted, was freeing law enforcement from the annoying restrictions placed on it in the 1960s and '70s. And Kavanaugh was there to second the motion.

Modern Americans take for granted that when police interrogate a suspect, they must first provide a "Miranda warning," noting his or her right to remain silent and get a lawyer. Otherwise, any confession will be thrown out of court. Most people are also familiar with the stipulation that if police conduct an illegal search, they may not use any evidence it yields.

But these simple rules didn't exist a few decades ago. Police routinely conducted searches without warrants in order to find evidence and win convictions. They also abused suspects in custody to get them to confess.

Things got better only when the Supreme Court acted to give real meaning to constitutional rights that had long been ignored. Rehnquist, however, never made peace with these decisions—and neither, apparently, has Kavanaugh.

The exclusionary rule forbids the use of evidence seized in an illegal raid. But Rehnquist thought it "was beyond the four corners of the Fourth Amendment's text and imposed tremendous costs on society," said Kavanaugh approvingly. "He believed that freeing obviously guilty violent criminals was not a proper remedy" and was not "required by the Constitution." Rehnquist had the same objection to the Miranda warning rule, which sometimes means letting a criminal go unpunished.

But the true obstacle to abusive cops is not these Supreme Court decisions. The true obstacle is the Constitution—which prohibits the government from carrying out "unreasonable searches and seizures" (the Fourth Amendment) or compelling a suspect "to be a witness against himself" (the Fifth). The remedies Rehnquist abhorred come into play only when cops have trampled on constitutional rights.

The case of Ernesto Miranda shows what happens without such rules. Police handcuffed him, took him to an interrogation room, and made him stand while they grilled him for four hours—spurning his request for a lawyer and keeping his lawyer, who had come to the station, from speaking with him.

In a crucial 1966 ruling, the Supreme Court said his treatment warranted throwing out his conviction. Rehnquist made clear that he would rather put up with such abuses than have the courts establish meaningful protections—and under him, the Court weakened those safeguards.

Another decision he didn't like involved Dollree Mapp, whose home was invaded by police, over her objection, without a search warrant and who was convicted of possessing sexually explicit material. The court overturned her conviction, establishing the rule barring evidence from unconstitutional searches.

When the court issued its decision, wrote University of Michigan law professor Yale Kamisar, several police superintendents "reacted to the adoption of the exclusionary rule as if the guarantees against unreasonable search and seizure had just been written."

The guarantees, of course, had been around since 1791. But many law enforcement agents had seen no reason to let them be a burden. If police had been scrupulously respecting those rights, the Supreme Court's requirement would not have affected them. Cops also routinely ignored the Fifth Amendment ban on forced testimony, using intimidation and physical abuse to extract confessions from both the innocent and the guilty.

The court had a choice in each instance: Devise a way to induce law enforcement agencies to abide by constitutional guarantees or let those guarantees be empty verbiage. We know which one Kavanaugh prefers.

Do these decisions sometimes benefit crooks? Yes. But as New York University law professor Stephen Schulhofer has written, the Framers understood that. The purpose of the Fourth Amendment "is to put some useful evidence out of reach and to make law enforcement more difficult," he writes. Ditto for the Fifth Amendment.

These requirements are now settled law, and police have adapted. But Kavanaugh betrays a yearning to return to the days when they didn't have to pay so much attention to the rights of those they detain. In that retro world, bad cops win. Good cops lose.

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  • loveconstitution1789||

    Lets hope kavanaugh uses lifetime appointment to support the Constitution like Gorsuch does.

  • Rev. Arthur L. Kirkland||

    If you don't like or aren't up to processing the evidence and reason, I guess hope and faith are there for the gullible and inadequate.

  • Horny Lizard||

    And then the piece of work wants Presidents above the criminal law. He destroys our rights and elevates the power of the executive. This guy is a traitor.

  • Mickey Rat||

    I presume you are referring to Kavanaugh's rather constitutionally orthodox assertion that to criminally charge and convict a president the political process of impeachment and removal must be accomplished first?

    Stop the pearl clutching.

  • loveconstitution1789||

    Presidents can be removed via impeachment as per the Constitution.

    Boy oh boy, are Lefties going to be pearl clutching when Ruth Ginsburg needs replacing on the SCOTUS and Trump gets to nominate a justice.

  • sarcasmic||

    In theory. In practice? Not so much.

  • Incomprehensible Bitching||

    Lock him up! Lock him up!

  • Horny Lizard||

    Your whole life is a fraud if you vote for this guy Rand Paul. You have the chance to stop this and force Trump to find someone who respects our hard fought freedoms. There's no reason we have to sacrifice. Find another Gorsuch.

  • I am the 0.000000013%||

    I wish it was that easy. The reality is there is a significant chance that if Rand torpedoes Kavanaugh we will get someone even less liberty minded.

    Trump choosing him turned this into a very painful choice. I get why he chose Kavanaugh though - soft on abortion to give the democrats some wiggle room, solid on the police state to get the hard right on board.

    I blame it on Kennedy. He could have retired 6 months ago and this would have gone a lot smoother, assuming Trump would choose someone different with more maneuvering room. I have no belief one way or the other whether that would have happened.

  • OpenBordersLiberal-tarian||

    And I thought Kavanaugh couldn't possibly be any worse. I mean, I already knew his confirmation would ban abortion nationwide, kick all African American students out of top tier colleges, and make it impossible for LGBTQ+ people to get service at various places of business. Now I find out he wants to give even more power to the same police who already relentlessly terrorize black and brown bodies?

    I urge all libertarians to contact your Senators and get them to promise they'll oppose this dangerous right-wing extremist. Drumpf should not get any more Supreme Court picks until Mueller has finished investigating #TrumpRussia, and the suspicious timing of Kennedy's retirement has been explained.

    #Resist
    #StopKavanaugh

  • Zeb||

    I guess I admire your persistence, but this shit is getting tired. Time for a new character, maybe?

  • Libertymike||

    He's actually amusing and clever. Sure, some posts are not as good as others, but I enjoy him.

  • sarcasmic||

    more thoughtful than lc1789

  • loveconstitution1789||

    Nanarchists like Sarcasmic, are just boooooring.

  • sarcasmic||

    Funny thing is, no one knows what an nanarchist is. Well, one could consult a dictionary, but it's amusing.

    You are so predictable. I'll give you a dollar if you come up with something that isn't a straw man or ad hominem.

    reallysarcasmic@gmail.com

    I will mail you a dollar.

  • sarcasmic||

    send me your mailing address or a post office box

  • loveconstitution1789||

    You know. Its short for Minianarchist.

    You know someone who thinks there can be a voluntary government that does not use force to push societal rules via government power.

    Until Judge Judy on People's Court tries to hear a property rights case and Sarcasmic disrupts the proceedings by yelling that "they are just lines on a map". Judge Judy promptly uses government force to have Sarcasmic thrown out of court for violating societal rules.

    He shuns the Nanarchist movement forever.

  • sarcasmic||

    Thank you for the edumication.

    I didn't know that.

    However on several occasions I have written about what I, as a libertarian, believe the limited role of government in society should be.

    When you are ready to have a conversation, as in trading ideas instead of calling names, I will be here.

    Have a nice day.

  • sarcasmic||

    I won't hold my breath.

  • loveconstitution1789||

    You're an anarchist. Be loud and proud. I am not calling you "names" as if this was some verbal duel.

    I am trying to understand why your comments undermine Libertarianism and this Constitutional Democratic Republic.

    One answer is that your anarchism leads you to find ways to destroy the USA so Anarchy-land can arise from the ashes. Another is that some people just want the World to burn.

  • sarcasmic||

    When you are willing to try to understand my words, rather than some delusion you have in your head, I'll be here.

  • sarcasmic||

    my schtick is sarcasm. sarcamic... who'd of thunk it... I take things to their logical conclusion, and make a joke about it. That's my deal... so when I take your stances on immigration and tariffs to their logical conclusion, I'm trying to make you think. I don't state my stance. I don't even know if I have one. I poke holes. It's what I do. I've been doing this for years. Enjoy, interact, ignore, or go away.

    You won't convince anyone that I'm something that I'm not.

  • Weigel's Cock Ring||

    Zeb is butthurt because he knows that he's one of the jerks that OBL is mocking.

  • Zeb||

    Have you ever read anything I have to say about anything?

    In any case, he's making fun of the hated "cosmo" that lives in the heads of pathetic retards like you. Sorry, buddy, you are the butt of the joke.

  • loveconstitution1789||

    Tony and Butt are Lefty jerk-offs.

  • FreeRadical||

    D-

  • Mickey Rat||

    Of course, in 1791, the BOR was considered a binding on the federal government, not the State governments, unless they had something similar in the state constitution. Also, throwing out the evidence completely is the not the only way or even necessarily the best way to accomplish discouraging bad practices.

  • Zeb||

    As I see it, you can't get rid of the exclusionary rules unless you first get rid of any presumption that police investigators are acting in good faith when they violate constitutional rights. Let's have a law imposing prison sentences on police who violate the fourth amendment, then we can talk about losing the exclusionary rules. As long as both individual police and prosecutors and departments can avoid punishment for violating people's rights, I think the exclusion of illegally gathered evidence is necessary.

  • Libertymike||

    Well, we can't really talk until individual cops are subject to civil liability and face the prospect of ruinous damages for interfering with, or violating, the rights of others.

    We shouldn't really talk until individual cops are forced to pay for their counsel and not be the parasites that they have become by laying off this expense on the taxpayer.

  • Cyto||

    We can't even have the real conversation. It was almost impossible before, but no the left has (deliberately) hijacked all talk of law enforcement reform and made it about Racism. And once the problem has been defined as Racism, then all of the prospective cures are about Racism. So there will never be a solution.

    The real discussion is very difficult, because we not only have to get the police, politicians and their statist supporters to understand that the abuse is happening, it is wrong, and something needs to be done about it (three things that they don't agree with), we also have the anti-cop contingent to contend with.

    The problem on our side is that you have to recognize that police are human beings, and as such they are going to make mistakes. Even if they are pretty decent and trying their best, they are still going to screw up from time to time... and with a million cops on the street, that's a lot of chances for a screwup.

    So the real solution should focus on changing their mission - getting rid of unnecessarily dangerous situations like no-knock raids in pursuit of low-level drug offenders. Many of the shootings we are up in arms about result from the police creating an unnecessarily dangerous situation, and then having to make that split-second decision they talk about. So this issue is about mission and training.

    These conversations are way more nuanced than anything we can have in this environment. So nothing will get better in the near term.

  • Libertymike||

    We do recognize that cops are human beings.

    Consistent with that recognition, we insist that they be held to account for their actions and that they do not receive special, snowflake treatment. Given that they are human beings, they should face ruinous damages if they interfere with another's individual liberties. They should not have any immunities because they have a gun and a badge and don Caesar's clown costume.

    Consistent with the recognition that cops are human beings, it is important to counter the heroism myth constantly peddled by the state's propaganda organs. That is why we all should celebrate those of us who spend the time demythologizing cops. They are not heroes.

  • Cyto||

    Well, currently we certainly give them special snowflake treatment now. Prosecutors and judges even moreso. That's something that has to change.

    But at the same time, if you have some guy that you paid to go into the crack house on your behalf and he mistakes a cell phone for a gun in a darkened hallway, there should be room for "wrong place, wrong time" mistakes.

    That's why I think we need to change the mission and the training.... so we don't have so many split-second decisions.

    The people who need to be held accountable are the people like the men who beat Kelly Thomas to death. That was no mistake. That was a callous murder, and they walked. We need to hold people like the men who tormented and shot Daniel Shaver 5 times as he crawled along a hotel hallway under their orders accountable... but we don't.

    And more importantly, we need to hold the idiot who sends a SWAT team in through a toddler's bedroom window with flash-bang grenades in hopes of catching someone with a couple of joints accountable. That's the guy that really skates. Nobody even gets outraged at the people making the decisions that put people's lives, health and dogs in harm's way. They are the real problem.

    And most of all, the politician who is "tough on crime" that starts the whole process needs to be held accountable. And that is never going to happen.

  • Qsl||

    Adding-

    Let's not forget that many of these "bad apples" are acting on demands from on high (an important buffer against is public sector unions, which libertarians often neglect), so that the occasional sacrificial lamb to appease the public accomplishes nothing without looking at the entire department. Often where there is smoke, there is fire.

    While body cameras and man on the street cellphones have largely taken the place of citizen ride arounds, one place they have not penetrated- official correspondence from police brass directly prior and after an incident.

    To be sure the problem with police is multifaceted, with problems being shifted around with public scrutiny than actually being addressed, but ultimately I think more transparency will ultimately get rid of the most flagrant abuses, with even the possibility of a federal OIG branch simply reporting on local departments.

    On topic- Kavanaugh isn't looking like much of a justice. Will probably be riding with team blue for this one.

  • Robert||

    The politicians don't start the process. The voters precede them. But they don't start it either, they get their ideas from someone. Blame parents, teachers, academics, activists, barbers, beauticians, bartenders, cab drivers, doctors, advertisers, commanders...everybody you wind up spending time w who talks to you.

  • loveconstitution1789||

    Exclusionary rules were designed to avoid making 4th Amendment violations criminal and giving the 4th Amendment teeth to fend of police violating rights and not finding out until months later.

    Police hate exclusionary rules which means they work. Unfortunately, more and more judges side with prosecutors and police to de facto form a 3 vs 1 court alliance again defendants. Juries would normal add another level of defense against that 3:1 alliance but the government found a loophole- plea bargains take the jury check and balance mostly out of the equation.

  • Cyto||

    Yeah, it is a pretty bad kludge.

    The problem with doing it this way is that the police have the "but we know he raped and killed that little girl" on their side. Just one of those cases undoes a hundred unreasonable abuses in the minds of most people.

    The notion you bring up of criminal penalties for state violations of rights would certainly avoid this dichotomy. If you removed the "but they let a dangerous criminal walk free on a technicality" from the argument, there would likely not be two sides of the argument in public perception.

    But it is still a difficult proposition. Putting someone in jeopardy of a criminal conviction every day during the course of a dangerous job should they make an innocent mistake on a judgement call (and lots of 4th amendment cases involve judgement calls) is pretty unreasonable. Most rational people wouldn't take that job, even if you did get to punch drunk idiots for fun every now and then.

  • Libertymike||

    Another myth: police work being dangerous. It is no where near the top of the list. Moreover, a high percentage of the dangerous element of police work is self-generated, such as engaging in high speed chases and initiating force against the wrong person who happens to be armed and not willing to submit to police abuse.

  • Cyto||

    There's "get killed" dangerous, then there's "I'm going to have to get in a scuffle with some big drunk dude". No, it ain't coal mining.

    But you don't get tossed in jail if you make a procedural mistake when coal mining.

    It is a pretty weird dichotomy - having a job that no reasonably intelligent person would take, and requiring a level of intelligence and knowledge comparable to judges and lawyers.

    And we wonder why giving them bad, shoot-first, "create dangerous situations out of thin air" training is a bad idea....

  • Libertymike||

    Its not coal mining.

    Its not driving a cab.

    Its not logging.

    Its not roofing.

    Its not commercial fishing.

    Its not trash and recycling engineering.

    Its not aircraft pilotry.

    Its not truck driving.

    Its not natural resource extraction.

    Its not electrical line installation and repair.

    Must harp on the demythologizing and the feeding at the public trough and being anti-intellectual blue collar narratives.

  • Cyto||

  • Libertymike||

    Well aware of this story as it is in my neck of the woods. On WEEI this morning, nominally a sports talk station, the morning drive nihilists were complaining about, wait.....wait......"the librul judges" and "the libral laws"....causing the cop's death.

  • Robert||

    It's not even firefighting, which it's usu. paired w.

  • sarcasmic||

    The job of a police officer is compliance. The law doesn't matter. Their job is to make people do what they say. Period. The end. So when someone fails to obey, the job of a police officer is to escalate, and to continue to escalate, until they achieve compliance or the person is dead.

    Except for very rare situations, situations where SWAT is actually warranted, the police bring the violence.

  • Cyto||

    Which points to that terrible training I was talking about. Add that to a bad mission and a bunch of hopped-up roid-heads and you are going to have problems. In fact, it is pretty surprising we don't have more problems.

  • sarcasmic||

    My ex's ex is a cop. He was Johnny Football Hero in school, has always gotten his way by pushing people around. Now his son says "My dad can do anything he wants because he's a cop." which is literally true. Who is going to stop him? The cops?

  • Juice||

    Of course, in 1791, the BOR was considered a binding on the federal government, not the State governments

    Even though it wasn't at all written that way?

  • Cyto||

    Really? I thought it was pretty clearly a charter for granting certain limited powers to the federal government - reserving all other powers to the states and the people.

    What language were you referring to?

  • Brett Bellmore||

    Well, the 1st amendment is obviously directed only to the federal government; "Congress shall make no law..." (If only they'd stopped when they were ahead.)

    OTOH, the rest of the amendments aren't so specific, simply describing rights and stating that they shall not be violated. I can see how that could be read as being binding on all levels of government.

    I don't think it was taken that way at the time, though.

  • loveconstitution1789||

    As you say Brett, the Founders specified Congress in the 1st Amendment and left out which government entity was restricted in many of the remaining protected rights.

    It is very reasonable that the other Amendments were a template for minimum protections that the states must have in their State Constitutions. All the states had those protections anyways but as a check and balance to states trying to nullify basic Constitutional protections for every American.

    Of course the 14th Amendment cemented the protections of the Constitution as minimum standards for all US states.

  • Robert||

    The 14th amendment cemented "liberty" as vs. the states. Exactly what "liberty" entails is left unclear, which is probably a good thing because the mention of 1 works to the exclusion of others. It can't be coterminous with the federal BoR, because there's stuff in there besides liberty, such as laws respecting establishment of religion.

  • Mickey Rat||

    Incorporation only comes into play with the 14th Amendment, and even that is controversial thing, which is why you don't get a ruling like Miranda until the mid 20th century. My point is, Chapman's assertion that the 4th & 5th applied to local police was not legally obvious for centuries.

  • loveconstitution1789||

    You could argue that some politicians purposely ignored the Constitutional protections to further keep slaves and other undesirables from exercising their rights.

    Why would all states be able to ignore the 2nd Amendment protection that all Americans have the right to keep and bear Arms. It would make the 2nd Amendment only be applicable in Washington DC.

    The 1st Amendment mentioning Congress as the only restricted government entity gets around state defamation laws. If your speech was national, you were protected by the 1st Amendment. If your speech was petty local harassment to destroy someone's character, you could be sued for defamation.

  • Jerryskids||

    What is the remedy for rights violations? We going to do like the Indiana Supremes decided when they said you have no right to resist the police even when the police are committing an unlawful act but instead your remedy is to sue them after the fact? That's not going to deter bad cop behavior, the lawsuit settlement doesn't come out of their pocket. Why bother with warrants and probable cause and due process when ignoring all that jazz costs you nothing?

    I don't even want to look over on VC to see if Paul Cassell's doing a victory dance right now, though.

  • Cyto||

    Yeah, that's a pretty awful solution.

    I don't think there is a police chief around who wouldn't take that trade.

  • brec||

    If the monetary punishments were meaningful the costs, even if paid by the municipality, would tend to deter individual bad behavior. Municipalities won't always be able to afford indemnifying bad actors on a continuing basis. It is true, though, that the deterrence is not as direct as some other possible punishments.

    The exclusionary rule is an effective way to deal with 4th amendment violations given the presumption that the "legislation" and application of such rules must come entirely from within the court system. The rule has the cost, as many judges besides Rehnquist and Kavanagh have noted, of freeing guilty actors. Courts are not the only nor necessarily the best source of possible deterrence law; legislatures can make laws, too.

  • Cyto||

    And if punitive damages got too great, they'd just pass laws capping damages.

    Also, where exactly do these judges live? There are certain biases that are going to come into play when people are in charge of the process.

  • Robert||

    Why bother with warrants and probable cause and due process when ignoring all that jazz costs you nothing?


    OTOH, why ever do a search, etc., when not doing it costs you nothing?

    I don't understand why the police ever lift a finger. Seems to me if they never showed up, there'd never be a complaint. The few wise guys who do complain—those they could fit w cement shoes!

  • brec||

    What Rehnquist saw as one of his biggest achievements, Kavanaugh noted, was freeing law enforcement from the annoying restrictions [exclusionary rule and Miranda] placed on it in the 1960s and '70s.

    Rehnquist achieved freeing law enforcement from the exclusionary rule and from Miranda? In which cases did he do this?

  • Mr. Dyslexic||

    Good morning.

  • sarcasmic||

    DYSLEXICS OF THE WORLD! UNTIE!

  • Dan S.||

    The Constitution was written with the intent of protecting citizens and controlling cops.

    Police forces as we know them today didn't actually exist at the time the Constitution was written. But yes, controlling agents of the State.

  • loveconstitution1789||

    Great point! The Founders had a pretty good prediction of problems based on the fundamental principle of small and limited government. Once the Socialists blew that out-of-the-water with the Mega-State, government abuse can happen without any real malice by government agents.

    Decades past, government agents had to try and fuck people over. Now something like the Post Office mistake with the trademarked image on a stamp costs taxpayers millions.

  • Juice||

    The Constitution was written with the intent of protecting citizens and controlling cops.

    Well, it was certainly written to give that appearance, at least.

  • loveconstitution1789||

    Freedom isn't free. Sometimes you have to fight government to make sure they follow the supreme law of the land.

  • sarcasmic||

    sarc's groove of the day..

    totally safe for work

  • Qsl||

    Not safe for not shaking that ass...

  • Robert||

    The problem was not w Rehnquist or Kavanaugh. The problem is criminal law. Criminal law's a mindfuck that doesn't sit well together w law generally. Can't live w it, can't live w/o it.

    If the principle (constitutional or otherwise) by which the exclusionary rule is understood were taken seriously, then if cops—or anybody—trespass to find stolen goods, the thief would be allowed to keep the stolen goods. Does that violate the property right of the owner? Sure, but why is that deemed a superior right? Instead they apply the principle only as against criminal prosecution, because everybody understand there's something fucked up about the existence of criminal law, but nobody'd stand for abolishing it either.

  • Enemy of the State||

    Seems like pretty thin gruel to feed a hungry anti-Kavanaugh meme...

  • Rev. Arthur L. Kirkland||

    That depends upon whether you are a libertarian or, instead, an authoritarian, stale-thinking right-wing goober.

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