When Old Man Scalia kicked the bucket, the Cato Institute’s Jonathan Blank honored him with a flattering post, “Justice Scalia: Underappreciated Fourth Amendment Defender”: “In addition to his many judicial bona fides, Justice Antonin Scalia was an underappreciated defender of the Fourth Amendment. With his typical thoroughness and deep textualism that reshaped American judging, the late conservative icon threw out convictions of individuals who were arrested as a result of unconstitutional violations.”
Well, some of the time. As another sometime Cato dude, Radley Balko, writes in the Washington Post, police in Little Rock, Arkansas are engaging in whole-sale violations of Fourth Amendment rights and getting away with it courtesy of Il Nino, who gave the majority opinion for a 5-4 ruling in Hudson v. Michigan (2006). In that decision, the Court held that while the Fourth Amendment requires police to “knock and announce” their presence before entering a home, violations of that requirement do not trigger the “exclusionary rule”, which forbids the use of evidence obtained as a result of an unconstitutional search and seizure. In rendering the Court’s decision, Nino “explained” that victims of police invasions could always sue for damages, and, anyway, things are better now: “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.”1
Sure, Nino, sure. Riker’s Island, Coney Island, what’s the difference? Justice Breyer took apart Scalia’s hypocrisies in his dissent, and now Balko presents, case by horrifying case, the fruits of Nino’s “typical thoroughness and deep textualism”, case after case of people having their doors bashed in, their eyes blinded and their ears deafened by stun grenades, their property despoiled, on the basis of ignorant, self-serving informants, for no purpose other than to swell an irresponsible police department’s hunger for “busts” no matter how trivial the crime—with, of course, no compensation for the abused and humiliated victims. Nino Scalia, not my favorite conservative icon.
Afterwords
Two years ago, Reason guy Jake Sullum wrote a nice piece for Forbes, “Scalia’s Mixed Drug War Record”, outlining many, but not all, of Nino’s hits and misses, though, strangely, Jake makes no mention of Hudson at all, a rather startling omission. Perhaps the saddest part of Jake’s piece is almost unnoticed by him: that neither the “conservative” nor the “liberal” justices do a respectable job of protecting our civil liberties, constantly kow-towing to “authority” rather than the rights of supposedly free people. If you want to be free in this country, have a concierge and a Mercedes.
- Scott Shakford, writing in the Oct. 30, 2018 online edition of Reason, notes a court ruling that the Memphis, Tenn. police department repeatedly violated a 1978 court decree prohibiting the department from engaging in politically motivated snooping into the behavior of “suspicious”, though unfortunately legal behavior of various assorted troublemakers and malcontents. The judge also concluded that the department had never bothered to explain to the cops that they were prohibited from gratuitous spying on citizens engaged in the exercise of their First Amendment rights. So maybe that “new emphasis on police discipline” so praised by Nino back in the day still needs some work. ↩︎
