When the Supreme Court granted cert in United State v. Herring, a shiver ran down my spine. This was the sort of case that could easily end in disaster, implicating the conflicting problems of a law enforcement incompetence and a search that revealed drugs and a gun. This is a volatile combination. The facts in Herring are:
In this instance, officers in Coffee County, Ala., arrested a man, Bennie Dean Herring, in 2004 after being informed by the Sheriff’s Department in neighboring Dale County that he was the subject of an outstanding warrant. But the warrant, although still in Dale County’s computerized database, had in fact been withdrawn five months earlier. In the 10 or 15 minutes it took for the Dale County officers to realize their error, the Coffee County officers had already stopped Mr. Herring, handcuffed him, and searched him and his truck, finding methamphetamine and an unloaded pistol.
The Supremes heard oral argument this week, and accounts of the argument provided two insights. According to Orin Kerr :
It was very engaging argument with two excellent advocates, Pam Karlan for Herring and Michael Dreeben for the United States, and the Justices were in top form. Karlan did her best in her opening argument, but Roberts, Alito, and Scalia were relentless. Mid-way through Dreeben’s argument, it was looking like the case was over: The Justices were debating the best way to write the opinion to affirm.
So how did Pam Karlan go so wrong? Well, it appears that she didn’t. Not at all, in fact. From the transcript of oral argument comes this exchange:
CHIEF JUSTICE ROBERTS: So, you would impose a burden on the officer on the street serving a warrant? When he gets the call saying there’s a warrant, he’s supposed to say, “Are you sure? Did you double-check with the clerk? When was the last time they updated the computer system? I don’t want to go through all this if the evidence is going to be suppressed.” At every chain in command, you would impose that burden.
MS. KARLAN: No, I would not, Mr. Chief Justice, because if you announce that police error is going to lead to the suppression of evidence, the police will do a better job of maintaining their records.
CHIEF JUSTICE ROBERTS: Yes, but I mean I don’t know what the situation is like —
MS. KARLAN: And then you won’t have this problem.
CHIEF JUSTICE ROBERTS: I don’t know what the situation is like in Dale County. They probably don’t have the latest version of WordPerfect, or whatever it is. They are probably making do with whatever they can under their budget and doing the best they can.
MS. KARLAN: But there’s not a Barney Fife defense to the violation of the Fourth Amendment either.
One of the best lines I can remember in a Supreme Court oral argument.
Why, one might inquire, would Chief Justice Roberts concern himself with the quality of WordPerfect in Dale County? What business is it of the Supreme Court to adjust its expectations of police under the 4th Amendment to the competency limitations of some local yokel police department? Does the protection of the Constitution vary in direct inverse proportion to the software budget of law enforcement?
Rarely will we see such a fundamentally misguided focus. The Constitution wasn’t adopted to protect the reasonably incompetent cop’s ability to screw-up. It was adopted to protect citizens against the government, which includes the best law enforcement officer as well as Barney Fife.
If there is, in fact, no basis to search an individual, then how does a person’s right (note the word, “right”) to be left alone succumb to the government’s error?
From an incentive standpoint, this encourages the government to be sloppy rather than diligent. Is this a conservative goal? Would our Supreme Court not prefer to have police do their job properly?
The apparent answer is that the Supremes are focused on police who violate the 4th Amendment malevolently, not negligently. This is based upon its tacit disdain for suppression of evidence, considered too drastic a remedy in the absence of overt deliberate police misconduct. Since suppression is supposed to be a deterrent, there is nothing to deter if the mistake is accidental. Stercus accidit, right?
But what about the citizen, who has done no wrong to be subject to a search by the government? Orin, in his first discussion of Herring, suggested that the outcome depended upon the definition of “who are the police?” In my view, this isn’t the right question. The question is who is the government, as the 4th Amendment prohibition against unreasonable searches and seizures is a right of the people against the government. Nowhere does the 4th Amendment limit its protections to the police. And when it comes to the “police” as a concept, every person in government is an appendage, not merely the ones wearing a uniform and a shield.
But all of this doesn’t appear to matter to the Supreme Court. Instead, we can look forward to the Barney Fife exception, as if the 4th Amendment didn’t have enough exceptions already.
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There is a second “right question.” Who are the people with the right to be left alone and whom the 4th Amendment protects? The people are whomever have violated the Prohibition of (Some) Drugs and (Some) Weapons, and everyone else.
That bothers the justices, doesn’t it?
I thought that there’s already a lot of (read: far too many) Barney Fife exceptions.
Like the case of a local guy, pulled over on a DWB, and arrested and booked in under “possession of hollowpoints” (he had a gun, and a carry permit) until the sergeant patiently pointed out to the perhaps overeager young cop that, err, that’s not unlawful here (this not being New Jersey), and kicked the guy loose (“unarrested” in the local parlance. Kinda like that bell I “unrung” the other day.) False arrest charges/lawsuit? Nah. She thought it probably kinda mighta been a crime, after all.
The question is “who are the police” not “who is the government” because the Court already ruled in Arizona v. Evans that the defendant loses if the error was by a government court clerk. (Actually, I was kind of interested in the fact that at some point in her argument, Karlan makes the point that the question is who the police are.)
Understood, but Evans was an absurd travesty, and an issue I’ve taken on successfully under the NewYork Constitution back in the good old days when New York had a constitutional jurisprudence distinct from the feds.
While I understand from a strategic perspective why Karlan didn’t chose to take on the extra problem of attacking Evans, and really didn’t need to in order to argue the point (though I can think of no better place to do so), two wrongs don’t make a right. Maybe reading your posts makes me too doctrinal these days?
Trust us
Roberts’ question sounds like something that belongs in the 1983/qualified immunity civil component of these kinds of cases where negligent deprivation won’t trigger a claim unless there’s evidence of systemic breakdowns. Perhaps the court is looking ahead to potential civil cases. Not sure I like how the law works there either, but agree that in criminal matters, 4th Amend protections should be absolute.
I can understand why criminal defense lawyers (and the rare criminal defendant who benefits from it) like the exclusionary rule (for both reasons of principle and advantage), and why prosecutors don’t, but I’m not either a criminal defense lawyer nor a prosecutor, and kinda hope to remain not a criminal defendant. And since we all know that it’s all about me, I don’t see much in it for me, and hope it stays that way. (Pinky swear: I’m not saying that it should be thrown out on those grounds.)
As a consumer (willing or not) of law-enforcement services, I’m more than vaguely troubled by the whole question of unlawful searches.
The effectiveness of the exclusionary rule as a check on unlawful searches seems to me to be at best extremely suspect and more likely laughable, and the more and more holes that get punched in it, the I tend to put it in the “risible” rather than “suspect” category.
Section 1983 lawsuits? So, a guy, minding his own business walking down the street, is shoved up against a wall and searched just to hassle him (such things have been known to happen), and the cop who decided to do it can’t, even in retrospect, come up with some sort of credible pretext or lie and say it was just Terry frisk (let’s say it gets caught on Youtube, and he’s going beyond the limitations Terry), and so he spends ten grand or more (probably a lot more) on a lawyer and fees, and assuming that the court doesn’t throw it out on some immunity claim, five years later, it goes in front of a jury who decides that hey, yeah, the guy’s civil rights were violated, and hits the cop with, oh, a $50K penalty (I’m being optimistic here) that gets picked up by his department.
The cop’s lawyer has been provided by his department/city, and he’s been deposed and is being tried on the clock . . .
And this will deter unlawful searches just how?
If not — other than human decency (and I’m a big believer in human decency, where it works, as a check on bad behavior) — what will? What would?
Therein lies the problem. If suppression won’t do it, if a 1983 action won’t do it, then what will?
Hey, you have lots of cop friends. Ask them and let us know.
I’d say some, rather than lots, but sure.
Well, I can give you the answer without asking them — they’d say that they wouldn’t search anybody without it being both lawful (which is pretty easy to arrange, a lot of them time, as I understand it) and proper and advisable (which is where reasonable people can disagree, of course); it’s that whole decency, and honor thing.
That’s what they’d say, and I’d believe them. I wouldn’t be a friend of somebody who I thought would, say, decide that copping a feel or throwing somebody around for recreational purposes was a job perk.
Let’s assume — just for purposes of argument — that I’m completely right on that. I don’t know as to how it gets us anywhere, systemically. I’m all for electing me King, and all, but I don’t see how that solves the very real problems.
What I do see, from my limited view, are cultures. The same thing that leads to, say, the thuggish culture in Chicago leads to the folks with badges in Edina and St. Louis Park doing a good, professional, honorable job (and I’m not talking about everybody, all the time, because we’re talking about humans, not angels, but that is what I see as the rule, from my limited vantage point) because that’s what their culture both selects for and demands.
And it’s also why I think that the bigger, more intrinsically culturally bad departments are unfixable — look at your NYPD, and what the follow-on to the Knapp Commission found, years later.
Nothing is unfixable. The problem is one of will, not capability. The majority of the people of NYC have no problem with a police force that abuses significant numbers of minorities (but only certain minorities mind you, the “bad” minorities, not the “good” minorities), because, well, because. It “keeps the streets safe”. In short, the will is lacking.
As to what it would require, well, it would require criminal prosecutions. A lot of them. And a prosecutor’s office elected by a populace that demands these prosecutions. And juries willing to convict at the end of these prosecutions. But lacking all of these — prosecutions, a prosecutor’s office with a mandate to prosecute, and juries willing to convict — you get what we see.
Locally we had a cop shoot an unarmed fleeing man in the back in front of a dozen witnesses who testified in court that, well, the dude was doing nothing but running and had nothing in his hands and made no attempt to turn towards the cop. The cop simply said those magic words, “I thought he had a gun in his hand and was turning toward me so I felt that I had to kill him in order to defend my life.” Because of the weasel-words “thought” and “felt”, those dozen witnesses’ words were rendered useless and the prosecutor’s office didn’t even bother presenting it to the grand jury. It would have been pointless. Because nobody around here is going to convict a cop of murder for killing a former drug dealer out on probation who was probably running from the cops because he was paranoid (in reality he wasn’t even the guy they had an arrest warrant for, yeppers, ye olde Barney Fife in action, they tried to arrest the wrong man then shot him in the back when he ran!).
End point: Folks nowdays don’t care about those wishy-washy things like “rights” and “law”. They have no problem with cops being judge, jury, and executioner. All the intricate workings of the justice system simply bore them. They just want to see blood, they don’t care about all that machinery that tries to preserve democracy from those who would bring tyranny. And as long as that’s true, I’m not sure what can be done. But let us make it clear – it’s not a case of ability to fix things. It’s a case of will.
WHAT A CROCK!!!!!!! “Folks nowadays don’t care about wishy-washy things like rights and law.” Where do these”folks” reside? Tragic for the fleeing man of course,but, twelve people just happened to be running with him or the police at the time and observed everything? You act as if you personally spoke with the twelve and got the inside scoop. Yep-one of them there conspiracy things is lurking about. Let me guess, you start your certain person bashing rants with ” I’m a Christian and pray for everyone; even that low life so-and-so right there.” If you live in such a place that the people who are really working to keep Democracy alive (and not just blowing smoke from the lower of what is obviously one of two interchangeable holes on your body )are actually the spawns of satan and everything evil–passports are relatively easy to acquire by people of your stature. Leave.
Until you are unjustly persecuted by people such as yourself; the people who start their sentences with “I know for a fact…” just to be exonerated by the persecutors with nothing more than -“Oh, well” You can’t possibly know what you are so damn sure you know.
I do apologize for my frankness and say I’m not trying to offend anyone.
[Ed. Note: Edited to remove unnecessary profanity.]