Posted on 06/22/2006 11:48:11 AM PDT by JTN
Last week, the Supreme Court ruled in its 5-4 decision in the case of Hudson v. Michigan that when police conduct an illegal, no-knock raid, any evidence they seize in the raid can still be used against the suspect at trial, even though the raid was conducted illegally.
I’ve spent the last year researching these types of volatile, highly-confrontational, paramilitary raids for a forthcoming report for the Cato Institute. The decision in Hudson is almost certain to lead to more illegal no-knock raids, more mistaken raids on innocent people, and more unnecessary deaths, both of civilians and of police officers.
Experts on both sides of the ruling have debated the issue for a week now. I’d like to make another point. The Supreme Court split on this case, right down the middle. The four most liberal justices voted in favor of the defendant, while the five most conservative justices voted in favor of the police.
The Court’s "swing voter," Justice Kennedy, filed a middling concurrence that sided with the conservatives, but warned them not to take their line of argument any further, or they’d lose his vote. But the majority opinion in this case, written by Anthony Scalia, was not actually all that conservative. Here’s why:
(Excerpt) Read more at foxnews.com ...
Ping
Radley is the conservative conscious.
The most puzzling part of Scalia's opinion comes in a passage where he states that over the last half century, police have become more professional, and more likely to observe and respect our civil liberties. Therefore, according to Scalia, punishing police officers who break the law shouldn't be of much concern.Today, they're less likely to break the law, and more likely to address and correct those who do internally. I don't happen to agree (neither, apparently, does at least one of the sources he cites for this passage, who has since said Scalia misinterpreted his work).
But let's assume Scalia is right. What he's saying, then, is that things have changed. Police have become better trained and better educated. They are less violent and more cognizant of civil liberties. Therefore, we ought to interpret the Constitution differently – in this case removing the remedy of excluding evidence for search violations – to reflect those changes.
This is the very "living, breathing Constitution" argument the left often makes, and that usually drives conservatives batty. It's an argument that is inconsistent with the originalism or "strict constructionism" conservatives claim to embrace.
"The most puzzling part of Scalia's opinion comes in a passage where he states that over the last half century, police have become more professional, and more likely to observe and respect our civil liberties."
Now they will become less so again. Scalia is one odd character, criticizing liberals for their fantasies about how the world works while reveling in his own.
The "exclusionary rule" isn't based upon the Constitution.
revealing the SC's greatest weakness....Anthony Kennedy is as big a flip-flopper as Sen. Kerry!
Exactly. Balko spoke to the source he discussed in the article and reported on it here.
I just spoke with Prof. Sam Walker, one of the most respected criminologists in the country, and an expert on police tactics and procedures. Justice Scalia cites Walker in his opinion in Hudson, quoting him directly on page 12:
There have been "wide-ranging reforms in the education, training, and supervision of police officers." S. Walker, Taiming the System: The Control of Discretion in Criminal Justice 1950-1990, p. 51 (1993).Scalia preceded the Walker cite with this thesis sentence:
Another development over the past half-century that deters civil rights violations is the increasing professionalismof police forces, including a new emphasis on internal discipline.Walker tells me he learned that Scalia had cited his work, "to my horror."
Walker adds, "Scalia turned my research completely on its head. My point was that these reforms came about because the courts, specifically the Warren Court, forced the police to institute better procedures with judicial oversight. Scalia now wants to take that oversight away."
Walker says poltical leadership, internal procedures, media oversight and public pressure are all necessary to ensure civil liberties, but that judicial oversight is extremely important too, and that Scalia misused his scholarship to imply that Walker supports a diminishing role for the courts.
So they can do as they please and there's no consequences.
The exclusionary rule is the only practical way of enforcing the "knock and announce" rule, which is.
Scalia is an activist social conservative.
While generally aligned with a true conservative, they are not the same thing.
Just for example, Scalia is the type that would probably OK states banning the sale of condoms to married people because, in his view, such morality can and should be legislated.
Yep. This is kind of like Saddam Hussein's lawyer arguing that he should be granted clemency because he hasn't abused the Iraqi people at all for the past three years.
Ping
They had a WARRANT.
There is a world of difference between a no-knock raid WITH a warrant and one without a warrant,
A warrantless no-knock raid would indeed be illegal, but this was NOT an illegal raid.
#8
Thanks that makes me sound smarter! ;)
Really, Scalia's comment was so obviously dumb. Police are getting better so lets take away the laws that made them better--they are unneeded now!
Some logic.
HIs other point IIRC was that ACLU-type lawyers were ready and willing and able and presumably the threat of three years of law suits will scare LE from trampling and trashing your home.
Scalia lives in TV cop fantasyland. His warm and fuzzy words are little different in demeanor than those who were selling rampant eminent domain.
Scalia is a brilliant jurist who has become seduced by ideology beyond the far right. He once was a straight shooter on primary constitutional concerns. Now, he's a shill for the extreme who travels with Justice thomas in his hip pocket. What a shame.
The Supreme Court has ruled that nearly all "no knock" raids are illegal, warrant or no. Hudson acknowledges that rule, although in principle only.
I think he would "OK" it because it is not even discussed in the Constitution. Therefore, it would fall to the state legislature and judiciary to decide. The Supreme Court's Griswold v. Conn. decision was a classic example of judicial activism, and laid the groundwork for so many others, like Roe v. Wade.
That's an entirely different thing from saying it's OK because it's a good idea.
In some ways, Justice Scalia may be an activist, but yours was a bad example.
You lie. There are other remedies as you well know.
This article is profoundly dishonest. Radley is a liar and you are his punk.
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