In 2006, The Supreme Court issued a decision, Hudson v. Michigan, striking down the Exclusionary Rule for common law knock-and-announce violations by police. The Court’s decision assumed that evidence obtained subsequent to a knock-and-announce violation didn’t need to be suppressed, because there were other more “tolerable” ways to deter unlawful police conduct than excluding evidence at a suppression hearing.
One of the alternatives to exclusion, according to Justice Scalia, was internal police discipline, which was bolstered by the increasing professionalism of police departments:
Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to “assume” that unlawful police behavior would “be dealt with appropriately” by the authorities, [citing United States v. Payner], but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been “wide-ranging reforms in the education, training, and supervision of police officers.” [citing Samuel Walker’s books]. Numerous sources are now available to teach officers and their supervisors what is required of them under this Court’s cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline. [citing various works]. Failure to teach and enforce constitutional requirements exposes municipalities to financial liability. [citing Canton v. Harris].
Nothing that crazy so far. But here’s the money quote:
Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect.
Based on this, one would think that police are becoming less irritable and more judicious in the execution of their duties. One might think that the culture of law enforcement has changed for the better over the past few decades.
When the decision came out, journalist Radley Balko immediately provided some examples of “Scalia’s New Police Professionalism” in action. Samuel Walker, an expert on accountability measures in law enforcement institutions whom Scalia cited in his opinion, even called the Hudson decision a violation of his intellectual integrity. Woops.
Against this backdrop, we get this gem today from Reason:
Eric Crinnian, a lawyer, heard a loud banging at his door Monday night, he was instantly alarmed since a neighbor’s house was robbed a few weeks ago, so he grabbed a crow-bar.
Crinnian said three police officers were outside his house.
“I open the door a little bit wider and he sees that I have something in my hand, so he pulls his gun, tells me to put down whatever I’ve got and then come out with my hands up, so I do,” Crinnian said.
They wanted to know where two guys were, and Crinnian later found out police believed they violated parole.
“I said, ‘I have no idea who you’re talking about I’ve never heard of these people before,’” he said.
To prove it, he said police asked to search his house, Crinnian refused multiple times. He said they needed a warrant.
Then he said one police officer started threatening him saying, “If we have to get a warrant, we’re going to come back when you’re not expecting it, we’re going to park in front of your house, where all your neighbors can see, we’re gonna bust in your door with a battering ram, we’re gonna shoot and kill your dogs, who are my family, and then we’re going to ransack your house looking for these people.”
So despite evidence of increasing professionalism in America’s police forces, we still have police behaving like bullies with badges, using inappropriate threats to scare private citizens so that the police don’t have to take on the burden of filling out paperwork—which in the case of a warrant application, is a Constitutional requirement. Yet these officers appear to be offended by the fact that they might have to comply with the Constitution when performing their official duties. Is this the professionalism that we are supposedly awash in after Hudson?
Make no mistake: the point being made here is not that all police officers behave this way. The point is that this behavior, when it does happen, tends to go unchecked. Scalia’s “New Police Professionalism” thesis is about accountability. It posits that internal discipline places a meaningful check on this sort of behavior when it happens. Yet there will probably not be any consequences for these officers if history is to be our guide. They clearly behaved inappropriately, but it’s doubtful they will get anything more than a slap on the wrist, despite making violent threats that would likely constitute criminal harassment if uttered by a private citizen.
Furthermore, systemic problems are also not being rooted out. Professionalism implies a tireless commitment to increasing standards and improving performance. Yet we have the NYPD stopping countless thousands with a 12% success rate—meaning that 88% of the people they stop are innocent (or at least appear to be). As Judge Scheindlin noted not too long ago, how can you call it “reasonable suspicion” if you’re wrong 88% of the time?
The truth is that police have a tough job. And one of the side effects of having a tough job is that one does not brook criticism from outside quarters easily. This creates a culture wherein many police feel that their actions are justified, regardless of how inappropriate or excessive they may be. For example, consider the case of Glenn Broadnax, an emotionally disturbed man who was apprehended by the NYPD:
The man, Glenn Broadnax, 35, of Brooklyn, created a disturbance on Sept. 14, wading into traffic at 42nd Street and Eighth Avenue and throwing himself into the path of oncoming cars.
A curious crowd grew. Police officers arrived and tried to corral Mr. Broadnax, a 250-pound man. When he reached into his pants pocket, two officers, who, the police said, thought he was pulling a gun, opened fire, missing Mr. Broadnax, but hitting two nearby women. Finally, a police sergeant knocked Mr. Broadnax down with a Taser. …
So two bystanders got shot. Fair enough. Accidents happen. Police should not be expected to have a 100% accuracy rate. But this case takes an interesting turn:
Initially Mr. Broadnax was arrested on misdemeanor charges of menacing, drug possession and resisting arrest. But the Manhattan district attorney’s office persuaded a grand jury to charge Mr. Broadnax with assault, a felony carrying a maximum sentence of 25 years. Specifically, the nine-count indictment unsealed on Wednesday said Mr. Broadnax “recklessly engaged in conduct which created a grave risk of death.”
“The defendant is the one that created the situation that injured innocent bystanders,” said an assistant district attorney, Shannon Lucey.
So basically, despite the fact that Broadnax was unarmed, and the police are the ones who mistakenly shot two people, they are charging Broadnax as if he is the one who shot them.
This may seem reasonable on its face. After all, Broadnax is the one who created the situation. But imagine this case didn’t involve police. Imagine instead it was two conscientious bystanders with concealed-carry permits that were trying to stop Broadnax from continuing his disruptive behavior. They see Broadnax reach into his pants. Fearful that he is drawing a gun, the conscientious bystanders fire, and accidentally hit two bystanders. Would we have the same result?
I’m not so sure that we would. There’s a clear case for self-defense, but that’s an affirmative defense that comes into play only after the conscientious citizens get indicted. Maybe the prosecutor decides that the conscientious citizens were too quick to pull their weapons. Maybe the prosecutor decides that they shouldn’t have pulled their guns in a crowded street. Maybe the prosecutor decides that charges are warranted, because despite the good motives of the conscientious citizens, their behavior of reckless enough to warrant a criminal charge.
This type of analysis doesn’t happen when the shooter is wearing a badge. There is a clear double standard here, one that gets applied with regular frequency. And it’s one of the many reasons why internal police discipline doesn’t work—because police supervisors are often using the same double standards to determine whether their subordinates did anything wrong.
Sometimes the problem gets so bad that the entire chain of law enforcement—from the police precinct to the D.A.’s office—is incapable of policing itself. That’s what happened in Maricopa County, where misconduct by a rogue police officer from the Phoenix Police Department was not only ignored, but tolerated by both police supervisors and prosecutors alike. Judge Kozinski of the Ninth Circuit was not kind in his assessment:
The Phoenix Police Department and [Detective] Saldate’s supervisors there should be ashamed of having given free rein to a lawless cop to misbehave again and again, undermining the integrity of the system of justice they were sworn to uphold. As should the Maricopa County Attorney’s Office, which continued to prosecute Saldate’s cases without bothering to disclose his pattern of misconduct.
And so we are left wondering when Scalia’s New Police Professionalism will rear its head. It is 2013 and accountability in law enforcement institutions is still an issue. Systemic failures still exist. and the New Police Professionalism is still nowhere in sight.