Recently, I wrote an article (which will hopefully be published) criticizing Scalia’s 2006 majority opinion in Hudson v. Michigan. In that opinion, Scalia and his fellow concurring justices on the Supreme Court held that the Exclusionary Rule did not apply to violations of the knock-and-announce rule. Scalia believed that it was not necessary to exclude evidence obtained in violation of the knock-and-announce rule because, inter alia, police departments seemed to be exhibiting greater degrees of “professionalism,” suggesting that they take violations of constitutional rights seriously. Scalia claimed that internal review procedures and professional discipline would serve to adequately chastize misbehaving officers. Here is the operative paragraph of Scalia’s opinion, in its entirety:
Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to “assume” that unlawful police behavior would “be dealt with appropriately” by the authorities, United States v. Payner, 447 U. S. 727 , n. 5 (1980), but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been “wide-ranging reforms in the education, training, and supervision of police officers.” S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950–1990, p. 51 (1993). Numerous sources are now available to teach officers and their supervisors what is required of them under this Court’s cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline. See, e.g., D. Waksman & D. Goodman, The Search and Seizure Handbook (2d ed. 2006); A. Stone & S. DeLuca, Police Administration: An Introduction (2d ed. 1994); E. Thibault, L. Lynch, & R. McBridge, Proactive Police Management (4th ed. 1998). Failure to teach and enforce constitutional requirements exposes municipalities to financial liability. See Canton v. Harris, 489 U. S. 378, 388 (1989) . Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.
My paper piggy-backed on Radley Balko’s now infamous criticism of Scalia’s claim, which Balko termed “the New Professionalism.” Much like Balko, I set out to provide examples that contradicted Scalia’s claim. But more importantly, I identified several factors which make it difficult for Internal Affairs Units and prosecutors to hold police accountable in the way that Scalia asserts. Those factors can be summed up as follows:
1. The Police-Prosecutor Relationship. There are well-documented sociological and subcultural phenomena that define the professional relationship between police and prosecutors which disincentivize prosecutors from filling criminal charges against malfeasant police. These phenomena generally manifest in two ways: a) Law enforcement officials stonewall a prosecutor’s criminal investigation of their fellow officers (i.e. “the Blue Shield” or “Blue Wall of Silence”), and b) Police expect solidarity from prosecutors when it comes to the daily grind of law enforcement. Both phenomena, for various reasons, make it difficult for prosecutors to press charges against police. The “Blue Shield” also disincentivizes Internal Affairs officers from disciplining their fellow officers.
2. Fourth Amendment & Qualified Immunity. The Supreme Court’s slow-and-steady redefinition of “objective reasonableness” for the purpose of analyzing Fourth Amendment violations has inadvertently increased the scope of Qualified Immunity protection for police officers whose injurious conduct is increasingly viewed as “constitutionally reasonable” by the courts. This makes it more difficult to hold law enforcement officials liable through a civil suit for monetary damages, because Qualified Immunity renders them immune from suit unless they violate a “clearly established constitutional right.” So when courts expand the definition of what is “objectively reasonable” for law enforcement officials, they expand by an equivalent measure the amount of police conduct is protected by Qualified Immunity.
3. Abrogation of Common Law Right-to-Resist. Many state jurisdictions have abrogated the right to resist an unlawful arrest. In those jurisdictions that have abrogated the common-law rule, this leads to two outcomes: a) officers are incentivized to behave with impunity because they know that they are literally “untouchable,” and b) individuals who do resist are often prosecuted for Assault on a Police Officer. As Scott Greenfield explained in 2011, these laws essentially give police officers the ability to engage in criminal behavior with little fear of prosecution, because it is often extraordinarily difficult to distinguish between an unlawful arrest, and a lawful arrest that is merely accompanied by illegal conduct.
After discussing these three issues, I suggested reforms that can help increase the level of accountability in police departments. One of those reforms was for prosecutor’s offices to create a separate, distinct unit for investigating allegations of police misconduct. By removing prosecutors from the daily grind of police activity, you remove many of the negative incentives that define the professional relationship between prosecutors and police. The police expectation of solidarity from prosecutors largely comes from the fact that police and prosecutors work closely with one another, and often develop close working relationships. This is much less likely to happen when the prosecutors who are investigating allegations of police misconduct have less day-to-day contact with the police in their jurisdiction, leading to more objective prosecutors who are less afraid to bring charges against police officers who commit crimes while wearing their uniform.
With this being said, I was heartened to see my recommendation vindicated when I read a story in the Washington Post about a police officer who was recently indicted in Virginia on charges related to the fatal shooting of a female motorist:
The indictment, handed up by a special grand jury, is highly unusual. There have been few cases in the United States in which an officer has faced so serious a charge in connection with actions taken on duty.
Indeed. But part of what makes this case unusual is in the way it was handled. Tim Lynch at Cato’s NPMRP elaborates:
First, a separate police agency was brought into the case. All too often the same agency ends up investigating itself. Second, a special prosecutor was appointed to the case. That was another important move. The local prosecutors work with the local police week to week. They depend on the police to help them win in court. Even if there is evidence of wrongdoing, prosecutors often look the other way so as not to “rock the boat.”
Precisely. When these sort of common sense reforms are put into action, they increase the likelihood that law enforcement officials will be held accountable in cases where they exceed the bounds of their authority. Everybody understands that police often have to make split-second decisions in dangerous situations. But it doesn’t follow that they should be granted impunity as a result. When a law enforcement official’s conduct rises to the level of criminal culpability, he ought to be held accountable, same as anyone else. These types of reforms ensure that prosecutors can play a more meaningful role in that process.
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