When this is the first comment to a post, I feel compelled to read.

Excellent post, Michael.

Posted by: Orin Kerr | Apr 5, 2012 12:19:01 AM

At PrawfsBlawg, where I think Dan Markel has  banned me for life for violating his comment policy of only praising scholars, a post by Michael J.Z. Mannheimer, a lawprof at Northern Kentucky University (“Ubi homines sunt homines, et oves timidus”) diminishing the implications of Florence v. Board of Chosen Freeholders, the Supreme Court decision  allowing unfettered latitude to prison officials to inspect nun’s body cavities.
 
What makes this special, aside from my pal Orin’s glowing comment, is that Mannheimer’s got some real world experience in the law,  He worked as a staff attorney in appeals for the Legal Aid Society, then wasted a few years clerking for an SDNY judge and warming a seat at Paul Weiss, where he obviously gained his sartorial sensibilities. He went back to work:

For five years before joining the Chase faculty in 2004, Professor Mannheimer served as Appellate Counsel and then Senior Appellate Counsel at the Center for Appellate Litigation in New York City, where he represented indigent criminal defendants on appeal from their convictions and in related collateral proceedings. He has briefed and/or argued over forty appeals in the Appellate Division of the New York Supreme Court, the New York Court of Appeals, and the U.S. Court of Appeals for the Second Circuit. He has represented clients at every level of the state and federal judiciaries, from handling sentencing proceedings, motions, and hearings in the New York trial courts to filing cert. petitions in the U.S. Supreme Court.

This sort of experience should have given him a better appreciation of the price citizens pay to live in our vaunted free society, provided they don’t mind being commanded to squat and cough on occasion to facilitate the ease of public sector employees performing their job at the risk of tunnel vision.

Mannheimer calls the reaction to Florence “somewhat overblown.”

Florence is another in a line of cases in which the Supreme Court has refused to calibrate constitutional criminal procedure rules to the severity of the crime at issue. In Atwater v. City of Lago Vista, for example, the Court held that police could arrest for any offense for which they had probable cause, even one that was a “fine-only” offense, i.e., did not have any possible jail time attached. In part, the Court refused to adopt Atwater’s proposed distinction between serious and minor offenses because of the hardship it would place on the police in some cases in determining which had occurred: whether drug quantity, or the value of a stolen item, was just over or just under the threshold amount for a “serious” offense, or whether it was the suspect’s first or fifth offense. Likewise, in Berkemer v. McCarty, the Court rejected the State’s contention that statements made in the absence of Miranda warnings were admissible where the police arrest for a traffic violation.

Forgiving the wordiness of a former appellate lawyer, his embrace of precedent is understandable. The Supremes have decided a line of cases that absolves the police of any responsibility for knowing what they are doing when it’s hard.  If Mannheimer’s vision was a bit broader, the list of cases would have been far longer, given the Court’s indulgence of police ignorance and its concomitant authorization for broader authority to intrude into the rights of citizens in direct inverse proportion to their knowledge.

What this means is that the less the cops know, the more they’re allowed to do.  The price for stupidity is everyone else’s civil rights. If the cops don’t know what they’re looking for, they can search anywhere. If the cops don’t know whether you’re holding a kilo or nothing, they can demand to see your anus. That sort of thing.  If the cops put inaccurate information in their computer, they can seize you and throw you in the clink (and do the anus thing) even though you are 110% innocent of any wrongdoing.  If you’re a cop, it’s good to be stupid. The stupider you are, the more you’re allowed to do.

Radley Balko writes about a bullet in a black kid’s kidney because a cop input the wrong license plate number into his mobile computer. I can’t help but wonder if it was made by Apple and had autocorrect. Huge mistake, but §1983 case dismissed because, you guessed it, the cop can’t be expected to get it right. The reasonable cop is the screwup, the moron, the guy who shoots first and afterward says “oops.”  The only thing missing was a  puppy to shoot as well.

What this comes down to is the courts’ protection of a police officer’s right to be clueless, rewarding ignorance by granting greater latitude to act than they would have if they knew what they were doing.  It’s about a choice between demanding that cops know what they’re doing before acting versus the right of Americans not to be subject to the degradation that naturally flows from stupidity. 

The Court holds that it is unreasonable to expect our police to refrain from taking the easy route, and that the rest of us have to squat,  cough and suck it up.  It’s the price we pay for freedom. Well, maybe not freedom, but for cops and now screws to do their job without too much effort.

It’s been my experience that people tend to rise or fall to meet expectations.  If the screws were not allowed to act until they figured out what they were doing before sticking their nose in an anus, there’s a chance that some contraband would find its way into the general population.  But nuns and men who paid their traffic tickets and the like would not be subject to needless body cavity searches. If the screws didn’t like losing their monopoly on prison contraband, they would tighten up their act and make sure they did things right.  Instead, the Court rewarded the most simplistic approach by deferring to the sound judgment of screws.

My expectations of lawprofs tend to run a bit low, in light of their lack of experience with how their theories tend to play out in the real world, and their adoration of public employees, especially those nearing full vesting of pensions.  But I would have expected more of Mannheimer, given that he read transcripts of life in the trenches.  That’s what makes his post particularly disappointing to me.

Yet, my pal Orin commented that it was an “excellent post.”  The problem with low expectations is that they’re usually met.