An Invitation To Carelessness


I miss Linda Greenhouse's reporting on the law in The New York Times. She has been replaced by a fellow named Adam Liptak. Liptak writes well enough for the Times, but his analysis rarely rises above the obvious, and he sometimes misses nuances that are important.

In this morning's paper, Liptak reports on the exclusionary rule, the latest endangered doctrine in the law. The Supreme Court seems poised to do away with the rule. Liptak is right, of course. The recent decision in Herring ruled that mere negligence by a police officer is not enough to yield suppression of evidence. Thus in the case of Mr. Herring, the fact that sloppy policy work resulted in his arrest for a non-existent warrant does not yield suppression of evidence seized at the time of his arrest.

The court seems to be distancing itself from the doctrine that requires suppression of evidence seized when police violate the law. A new doctrine is emerging, requiring courts to balance the harm resulting from suppression against the deterrence value of suppression as a remedy for police misconduct. The emerging doctrine says that when a police officer is merely negligence, the balance tips in favor locking up the bad guys.

All this is obvious. But here is where Liptak falls far short of the level of analysis expected of the Times. He paraphrases Justice Anotnin Scalia's majority opinion in Hudson v. Michigan for the proposition that suppression is not necessary as a remedy because people can now sue the police for misconduct, a right set in stone about the time the exclusionary rule took shape.

What no one notices is the following. An action against a police officer for a Fourth Amendment violation can be pursued under 42 U.S.C. Section 1983. But these actions cannot be supported by allegations of mere negligence. An officer's misconduct must arise from recklessness or intent to be cognizable. Ordinary negligence claims never make it passed a motion to dismiss. Period.

Scalia's cheery dicta about civil suits for lawyers is simple silliness. In Herring's case there can be no federal civil rights remedy. The cops were merely careless. Hence, evidence seized unlawfully was used to convict him, and there is nothing he can do about it. There is no deterrence. Period. To suggest otherwise is simply ignorance, as in Liptak's case, or worse, as in Scalia's.

What's more, even in those instances in which there might be a claim for police misconduct, where cops are reckless or act with intent, many jurisdictions routinely indemnify police officers for their damages and the cost of their defense. Put another way, government insures police officers agains the consquences of violating our rights.

The Herring and Hudson decisions should be read together. When they are, the picture emerging is chilling: There are no remedies against illegal searches and seizures when police are merely careless. That's the law. And we haven't even begun to discuss the Court's recent decision on qualified immunity, which will follow here in a later post.

Bottom line: Medieval law knew a maximum which went as follows: The king can do no wrong. Substitute state for king in our emerging jurisprudence and you get the picture. Rights are merely recommendations the sovereign is free to follow or not. This is frontpage news, but not the news the Times reported.

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