Third Party & Independents Archives

Liberal Professor Feels Violated by Justice Scalia

Supporters of criminal rights were enraged when the Supreme Court ruled in Hudson v. Michigan this past term to weaken the exclusionary rule and allow evidence to be submitted at trial - even if collected improperly. Among them was a liberal professor whose own theory was used against him by the smartest justice on the Supreme Court.

In his piece for the L.A. Times titled Scalia got it wrong in police ruling, professor Samuel Walker fumes over the decision:

A FRIEND e-mailed me last week with exciting news -- the Supreme Court had cited one of my criminal-justice policy books in an important, late-term decision. My law professor friends tell me that being mentioned by the court is a huge deal. And my 93-year-old mother in Cleveland will certainly be impressed that her son has finally done something worthy of note

Alas, as I surfed the Net for news about Hudson v. Michigan, my excitement turned to dismay, then horror.

First, I learned that Justice Antonin Scalia cited me to support a terrible decision, holding that the exclusionary rule -- which for decades prevented evidence obtained illegally by police from being used at trial -- no longer applies when cops enter your home without knocking.

Right of the bat, Walker exposes his political identification by calling the ruling "a terrible decision" as he obviously believes in the merits of the exclusionary rule. It's no surprise whenever this professor disagrees with Scalia, especially when he incorporates his own writings.

What caught me off guard in Walker's piece is the part that reveals just how liberal he is when it comes to the Supreme Court and his vision of how it should be deeply involved in political matters governing our country:

Scalia quotes my book, "Taming the System: The Control of Discretion in American Criminal Justice," on the point that there has been tremendous progress "in the education, training and supervision of police officers" since the 1961 Mapp decision, which imposed the exclusionary rule on local law enforcement.

My argument, based on the historical evidence of the last 40 years, is that the Warren court in the 1960s played a pivotal role in stimulating these reforms. For more than 100 years, police departments had failed to curb misuse of authority by officers on the street while the courts took a hands-off attitude. The Warren court's interventions (Mapp and Miranda being the most famous) set new standards for lawful conduct, forcing the police to reform and strengthening community demands for curbs on abuse.

Scalia's opinion suggests that the results I highlighted have sufficiently removed the need for an exclusionary rule to act as a judicial-branch watchdog over the police. I have never said or even suggested such a thing.

To the contrary, I have argued that the results reinforce the Supreme Court's continuing importance in defining constitutional protections for individual rights and requiring the appropriate remedies for violations, including the exclusion of evidence.

Walker accuses Scalia of misrepresenting his opinion, but all the justice did was use the same findings to come to a different conclusion. Walker believes the exclusionary rule has required law enforcement to reform its policies over the years and that it should continue. Scalia believes it is no longer necessary. The difference is Scalia has a much better constitutional argument to make while Walker has to rewrite the purpose of the judicial branch...and admits it:

The ideal approach is for the court to join the other branches of government in a mix of remedies for police misconduct: judicially mandated exclusionary rules, legislation to give citizens oversight of police and administrative reforms in training and supervision.

No single remedy is sufficient to this very important task. Hudson marks a dangerous step backward in removing a crucial component of that mix.

But the Supreme Court was never supposed to "mix" with the other branches to do whatever today's criminologist feels is important. The Court was created specifically as an independent branch to correct legislative wrongdoings among a limited number of other things unrelated to this topic. Laws governing police should be written -- naturally -- by lawmakers.

Libertarians have a right to be concerned about the outcome of this case because police now get more power to conduct investigations. But let's not overestimate the Fourth Amendment. We are protected against "unreasonable searches and seizures." There was nothing unreasonable about the evidence seized from Hudson - even with the police having failed to properly "knock and announce."

Posted by Scottie at July 6, 2006 5:18 PM
Comment #165283

I take exception to your opening line
“Supporters of criminal rights were enraged “

I am sorry, but when did we eliminate “innocent until proven guilty” in this country?
Too often I encounter this attitude which is “It’s ok if his rights were violated — he’s a criminal” — when talking about someone who is only ACCUSED of a crime.
There is some mistaken notion that these abuses only happen to “the bad guys” and since they deserve it cause they are “bad guys” (criminals, whatever) then “who cares”??
Can we please use more accurate language when discussing this (or if that is truely your perception — could we please have some civics 101 lessons first??)
Supporters of criminal rights were enraged “
should be
“Supporters of the rights for the accused were enraged”


Posted by: russ at July 6, 2006 6:25 PM
Comment #165288

Scottie, this line of argument you make is exactly the same as the argument that since we now have well established that society does not condone murder, we can now eliminate punishment for the crime when it does occur.

The exclusionary rule was a punitive measure against overreaching police departments and members which acted as a check against excessive tendencies and pressures on the police to get someone, anyone, to keep the press off the Chief’s butt about unsolved crimes. You do realize that is still one of the chief reasons we have too many innocent persons in our prison system, don’t you?

Scalia is a jack ass on this ruling, once again displaying his propensity toward a police authoritarian state that will make him feel secure when he beds down for the night. Scalia would have been one of the Nuremburg Trial judicial defendents had he been born a few years earlier in Germany and became a judge. His all power to the Executive Police state (Supreme Court excepted of course), is about as authoritarian as it gets.

Posted by: David R. Remer at July 6, 2006 6:49 PM
Comment #165329

I think I agree with the man you’re quoting. The whole point of the exclusionary rules is to punish the improper gathering of evidence, to give teeth to the Fourth Amendment’s protection of our rights, lessening the incentive for law enforcement officers to cut corners.

What is it about folks that they think that suddenly because they are in charge, government can be trusted to do all the things that were monstrously invasive when we held power.

Posted by: Stephen Daugherty at July 6, 2006 10:36 PM
Comment #165349

In our system the judges rule whether it is reasonable to search someone’s home. The police do not do end runs around the judge’s judgement. This is written into the constitution. We are protected from unlawful search and seizure. I don’t think you have much respect for our constitutional rights, nor do many Republicans these days, and that saddens me.

You say that Scalia is brilliant for citing facts used to previously prove the opposite of his decision, but to me that’s just confusing. Not that I think Scalia’s perspective is credible, but why should a judge cite facts that can be used to persuasively argue a counter argument? Isn’t it more likely that this “brilliant” mind did not bother to actually read the article he cited, but rather had researchers look for any facts they could find to support his a priori decision?

Posted by: Max at July 7, 2006 12:15 AM
Comment #165365

The FBI has already obtained private records on 900 American citizens, with nothing more than a letter on FBI letterhead ordering it. No warrant, no judicial review, no checks and balances. Will you be # 901, or me? OR 9001 or 9 million and 1.

It’s here folks, and its a cancer on our democracy and freedom as American citizens abiding the law and minding our own business. Sit back, relax, and no worries mate, it’s not happened to you, yet!

How long do you think it is going to be before a few enterprising law enforcement officials decide to use some of that personal data for personal retirement? I had 3 uncles who were Sheriff Deputies in Colo. Only one was crooked at first. In the end, all 3 were fired from the force. Only reason they didn’t do time was because the department wanted to keep the whole thing out of the papers. Granted, it was years ago, but, human evolution hasn’t come far in just a few years.

Posted by: David R. Remer at July 7, 2006 2:00 AM
Comment #165368

Well argued, yet IMHO the Professor has missed the point that Justice Scalia was trying to make by exposing his article to the Natural Course of Human Events. While I can understand why many Liberals and Independents are outraged, I can also see the argument from Justice Scalia’s point of view. However, as an Independent Pundit I must thank Justice Scalia for opening up his eyes to the societal fact that Our Police Officers need to be trained and properly adviced.

David brings out a very good point that Justice Scalia is a “Pure Authoritarian.” How close Justice Scalia believes that as a Society all Humans should work to obey the Law of the Land is his on Unalienable Right of Freewill and according to the Founding Fathers, as an American I must respect it. However, as an Anti-Authoritarian by Self-Nature I do believe that Justice Scalia has the Right by Seat of Power of Government to allow such actions of Police Officers now and in the future especially when lives are on the line.

Yes, great oversight of such programs is demended by “We the People,” but if today’s want-to-be badmen want to play in the Right Here Right Now World than it is up to the Youth of the 21st Century to stand up and demand from Washington D.C. and other places of Seats of Nations the ability of Our Societal Tools to operate in the same Realm.

Simply put does breaking down a door to serve a valid warrent on a known criminal justify the use of EXTREME FORCE by Our Societal Tools when the party you are dealing with refuses to stop at the edge of Logic & Reason?

Posted by: Henry Schlatman at July 7, 2006 3:41 AM
Comment #165378

I also think Scottie has made a good point here. The police had a warrant and had a good search. Their failure to knock and announce should be addressed, but it is not a basis for throwing out everything else about the search.

This isn’t like “offsides” in football, where everything afterwards is negated and the play is called back. Everything about the search was legitimate except for the failure to knock, which as far as I can tell was never meant to immediately invalidate a warrant.

I would like to direct libertarians to this article by libertarian blogger Kip, Esquire. I think he lays it out nicely.

Posted by: Wulf at July 7, 2006 7:35 AM
Comment #165383

I agree with the misrepresented professor. When you deploy some of the findings in a study, it is important to present these inferences in the context in which they were generated. Otherwise, the significance of the propositions that are referred to in the work that incorporates them as facts drawn from secondary sources is skewed. In this case, Skalio presents these conclusions as indications that the checks and balances provided by the Judiciary are no longer needed due to the improvement of police conduct, when, in actuality, police conduct is still something that calls for improvement and continued monitoring, despite the fact that they have improved since the inception of judicial safeguards intended to curb police abuses.

Posted by: Russell Cole at July 7, 2006 8:59 AM
Comment #165386

The FBI has already obtained private records on 900 American citizens, with nothing more than a letter on FBI letterhead ordering it. No warrant, no judicial review, no checks and balances. Will you be # 901, or me? OR 9001 or 9 million and 1.
Posted by: David R. Remer at July 7, 2006 02:00 AM

Mr Reamer, were you concerned when the Clintons had hundreds of secret FBI files in the White House to dig dirt on their opponents?

I agree that people accessing this sort of info without a demonstrable need to know is a problem. Don’t know If you are like many Bush haters that I read on these pages. For them it is just a question of hating the President, not big brother in general.

Which is it in this case?

Posted by: Seminole 6 at July 7, 2006 9:16 AM
Comment #165388

The fact that two state courts chunked the faulty premise that same sex marriage was a right seemed to take those who rely on courts for legislation by surprise. Then, I see these comments on the exclusionary rule decision have the same tenor.

Those who rely on activist courts to legislate should not be shocked when the courts then do something not to their liking, IMO. Sooner or later a conservative gets appointed.

Posted by: Seminole 6 at July 7, 2006 9:33 AM
Comment #165419

Seminole 6-
Bush supporters have a bad habit of assuming that the dislike of Bush came before the action. It allows them to neglect the fact that many’s people’s feelings towards Bush are consequences of these actions. There are Republicans who are breaking with the president on this matter, not to mention a great number of moderate. This matter of whether it’s Bush hatred is just a convenient distraction from the fact that Bush is self-inflicting much of his own unpopularity, and that his actions are feeding his image as a violator of civil liberties.

As for activist courts, I just wonder if you can explain how it’s activist, or whether it’s just a partisan, rhetorically-loaded way of saying you don’t like the decision.

Posted by: Stephen Daugherty at July 7, 2006 11:53 AM
Comment #165437

Mr Daugherty:
I am one who wants personal liberty/rights to remain in this country. But, for the life of me I cannot fathom how GWB has violated civil rights or liberties of Americans.

All of the talk of of privacy invasion, monitoring foreign communications, peering into financial transactions, etc., are an outgrowth of the war on the terrorists. I do not believe any of the intelligence gathering examples were conducted in an extralegal manner. I do know that if we don’t prevail in the present struggle with evil in the world, those rights and liberties will disappear whether you are from the right, center or left. I do not agree with much that the President has done, but I believe that the left does him a disservice if they quarrel with his means of fighting this war. Particularly when the opposition arises from personal dislike, whatever the reason.

My point on the left vs right reaction to an activist court is that decisions from such a court can cut both ways. My personal reaction to activist courts is not necessarily a dislike of the decision, but the complete randomness of these decisions. Some of the rights conferred in the last few decades do not arguably conform with or reside within our constitution, and don’t even mention commerce clause decisions and the like. These decisions are not a reasonable interpretation of the Constitution nor law. These are created from whole cloth and therefore anything can flow from a court; Constitution and law, be damned. Bottom line is I don’t want 7 unelected, unaccountable lawyers, making my laws!

Posted by: Seminole 6 at July 7, 2006 12:52 PM
Comment #165501

Seminole 6 asked if I was concerned about Clinton’s use of the FBI. The answer is YES, Absolutely! Why would I entertain violation of constitutional rights by one politician and not another. I stand for voting out incumbents and corrupt politicians, regardless of party.

Posted by: David R. Remer at July 7, 2006 3:14 PM
Comment #165531

The decision rendered by the SC on this matter is much more narrow that it is being interpreted on these boards. The court did not throw the baby out with the bathwater on this decision. It simply found that the failure to announce did not on its own merits invalidate the search.

A brief look at the facts of the case will show that some of the evidence was excluded on other grounds: .

The foundation for the knock and announce rule was in the English Common Law. It was only 11 years ago in Wilson v. Arkansas that the provision was established in the Supreme Court. In Hudson, the police actually did announce but failed to knock. They also waited for 3 to 5 seconds below the accepted threshhold of 15 seconds (for this I can find no cite making it legally binding).

The English Common Law did make for provisions to not announce or knock if they felt that it would put the officer in danger, allow the accused to flee, they knew no one was at home, or destroy evidence that was the cause of the search. The provision has its roots in the protection of property from damage that could be caused by kicking in doors.

The court did not exclude the evidence in Wilson either because the Arkansas SC had not ruled as to whether the failure to knock was not due to one of the reasons cited above (and more cited in the case

The court did not hold the police without liability in Hudson. They left the door open for (in fact invited) civil and criminal charges to be levied against police that abuse the knock and announce provision. They did, however, decide that a violation of the provision would not result in exclusion of evidence otherwise legally obtained.

This despite opinions to the contrary does not appear to be an “activist” opinion. It was unsettled law. There were dissents entered into the record and the specific citation of the text mentioned in the post leaves the door open for the exclusion remedy to be restored if police violate too often.

Posted by: Rob at July 7, 2006 5:47 PM
Comment #165536

Sorry links didn’t post right, having trouble today, here are the URL’s.

Hudson v Michigan”

Wilson v Arkansas

Interesting article and commetary from findlaw:

Posted by: Rob at July 7, 2006 5:55 PM
Comment #165605

Excellent point! While some may recent the Authority of the Court to narrowly define and refine the “Letter of the Law.” It should be the duty and responsibility of every American Citizen to force our Elected Officials and those seeking those public offices to the highest standard of conduct possible under the Law of Man.

Posted by: Henry Schlatman at July 7, 2006 8:37 PM
Comment #165710

Rob, your history fails to account for our founding fathers absolute dread and hatred of the British busting in their homes to make arrests, confiscate goods, or make inquiries, which was common practice in the colonies and was one of the practices which promoted a tremendous amount of debate and discussion about how to end this abuse by the British.

Hence, the founding fathers created the due process clause. Process in their day, commonly, though not legally, meant serving papers. That was the general expectation of the New American citizens. That the government could not barge into one’s home without prior notification, or due process, as in a court ordered warrant served.

The adaptations made to ever more clever means of criminals to circumvent due process, flush evidence, of vacate the premises, has resulted in criminals dictating to society that they give up protections and freedoms as intended by our founders in their game of cops and robbers escalation of hide and seek. This was never, ever, what the founders would have wanted to see happen. That criminal behavior would diminsh freedoms and liberties for everyone else. But, that is in fact, precisely what is happening.

Posted by: David R. Remer at July 8, 2006 4:39 AM
Comment #166156


Good point, on the revolutionary history. However, I think the legal basis for the fourth ammendment can be found in Enlgish Common Law, but I’m no constitutional scholar. To your more important point though, I don’t think my argument flies in the face of the 4th Ammendment.

This decision does not allow for entry into a home without exigent circumstances or a warrant. It went to knock and announce procedures and only those. The decision said simply that the failure to knock and announce is not justification for removing evidence on an otherwise unlawful search. It does not exonerate the police that don’t follow procedures. It in fact invites community oversight, civil suits, and reprimands. It only clearly states that the failure to announce properly does not provide a technicality for someone found guilty to use to reverse a conviction. This point was never settled law. I don’t believe that this point alone weakens the 4th ammendment either.

Posted by: Rob at July 9, 2006 4:04 PM
Comment #166177

Rob, the decision reversed a huge a disincentive toward police power to violate the law in order to get their criminal or innocent person whichever the case may be. In so doing, it is granting police power the ability to weigh minor infractions of the law on their part against the necessity to apprehend a someone. Under the previous interpretation, it was a complete and utter waste of tax dollars for police to violate the law in order to “get their man”, because the case would be thrown out of court.

Now, the case will proceed in court, and more potentially innocent persons will end up in our penetentaries. It is far easier to convict an innocent person if breaches of police power are NOT grounds for dismissal.

We have seen time and again that police departments will protect their own. Rodney King, and many other cases of police brutality and planted evidence far too often result in the police department exonerating or slapping the hand of the cop who broke the law in order to make their collar.

It is not reasonable to assume that police departments will police their own infractions. Not when huge federal, state and local dollars are riding on statistics of apprehension and conviction. Yet, the Supreme Court and Scalia are doing just that. It defies the reality of the history of police power abuse and illegal procedure and the record of police policing their own in small towns all the way up to the infamous LAPD, where a century of police power abuse is very well documented.

Not all police departments are overcome by police corruption. But far too many are to rely on them to police their own breaches of legal application of the Bill of Rights.

Posted by: David R. Remer at July 9, 2006 5:28 PM
Comment #166287


We will have to agree to disagree on this point.

My research leads me to believe that this is a narrow point of law that will not result in any more potential innocent men in prison that if it were decided the opposite way. The fact is that a Search Warrant is still required, that the exclusionary rule is still there if the search is deemed bad. I don’t think this a wide-open invitation to abuse of police powers. It is a narrow law that says this technicality is not grounds for the exclusion of evidence. Not all technicalities.

If you are concerned about police abuses of this law, found the national (or local) failure to knock and announce organization. Organize fund raisers and recruit attorneys that are willing to serve as counsel in civil suits against the police. Represent those that were charged with drug trafficing who had their doors broken down by police that failed to count to ten. Prove that without the exclusionary provision that police will not abide the law. Once proven, take the case back to the SC and ask them to reconsider.

Posted by: Rob at July 10, 2006 10:22 AM
Comment #166309

Rob, I send my dues and donations to the ACLU for that express purpose. No point in reinventing the wheel. The ACLU does a fantastick job in matters such as these fighting for all of our protection from overreaching government authority and intrusion. I will keep sending them the funds they need to keep the good fight going.

Posted by: David R. Remer at July 10, 2006 12:34 PM
Post a comment