More Evidence Of “The Increasing Professionalism Of Police Forces”

Justice Scalia says the increasing professionalism of police forces means we don’t need judicial remedies for Fourth Amendment violations.

Yesterday, in Limestone County Alabama, in an attempt to carry out an arrest warrant for one person, three truckloads of heavily armed federal and state law enforcement agents:

1) failed to even give the local authorities a curtesy call; 

2) busted down the door and exploded into the wrong house;

3) shot the unsuspecting resident of that house, Kenneth Jamar, who is in his 50’s and suffers from gout, and whom relatives say “can’t even get up to make himself a ham sandwich;”  

4) did not find the actual suspect until long after the mistaken entry and shooting, when they happened to see him in the front yard of the house talking to reporters.

But don’t worry, other professionals are looking into the matter:

Investigators still are questioning those involved and were looking into whether Jamar fired at officers, Blakely said.

A few points here.

One, instead of blaming the victim, what about an investigation into why in the world they needed a small army to arrest one person? Or why they needed to break down the door at all? Or why they broke into the wrong house? Or if the suspect was such a huge flight risk, or danger to the community, how and why he managed to hang around and talk to reporters at the same time the cops were milling around wondering what just happened?

Two, even if Mr. Jamar did shoot at the cops, can anyone really fault him for it?

If the cops want to be Billy Bad Ass and break down people’s doors, this kind of stuff is going to happen. Alabamians will defend their homes. We just passed a law making it easier to shoot home invaders. The cops may not consider themselves home invaders, but perception is what matters. All Jamar knew was that a bunch of guys with guns had just busted into his home. Is it any wonder he shot?

The day Justice Scalia said there is no remedy when cops break down the door without first announcing their presence, I got an e-mail from one of my most conservative friends. A guy who thinks Ann Coulter is a genuine intellectual talent said this to me:

My response — OK, but I better not be charged for shooting a cop that barges into my house in the middle of the night without knocking first.

Also, whether they announced their presence or not, in Alabama you have the right to resist an unlawful arrest. The cops did not have a warrant for Mr. Jamar’s house, or for his arrest. Nor had Mr. Jamar done anything suspicious. That makes their intrusion unlawful, and Mr. Jamar’s response excusable.

Three, no-one is going to suffer any adverse consequences for this screw-up. Any lawsuit will quickly be dismissed, with words like “emergency” and “officer’s safety.” Never mind the fact that the officers created the emergency and the dangers. As for internal discipline, I’m not holding my breath.  

Update – Hudson v. Michigan – Scalia Is An Activist

I would have added this to the previous post, but it deserved one of its own. From the Agitator:

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 proffessionalism 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.

Walker also says his research focused on conventional policing, not drug policing. The latter, he says, "is a special kind of policing," and says he would agree that the direction of drug policing of late (which of course was what the Hudson case is all about) does raise significant civil liberties concerns. One might also note that Walker's research for that particular book ended in 1990, sixteen years ago.

So Scalia not only used social science research to interpret the constitution, he misused that research. Next thing you know he will be citing foreign law.

As usual, Ed Brayton says it best:

The irony of this is that Scalia, by his own declaration a textualist and an originalist, would be the first one to criticize reliance on social science research to justify a court ruling. Yet not only does he use such research to justify his ruling here, he does so sloppily and inaccurately. If he did not agree with the outcome of the decision, if it was written by someone other than him using the same reasoning for a goal he didn't agree with, Scalia would be the first one out front blistering this decision as exactly the kind of unprincipled, undisciplined judicial reasoning that one would expect from those horrible liberals who ignore sound judicial interpretation in favor of injecting their own social science driven biases into the law.

BTW, if you want more examples of professional police behavior, the Agitator has them here.

Hudson v. Michigan

Justice Scalia, last week, on why the exculsionary rule is not needed to ensure that police officers respect the Fourth Amendment by knocking on doors before smashing them down (emphasis added):

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.

In Alabama news this week, we see this example of the increasing professionalism of law enforcement:

An internal city audit of firearms in the Dothan Police Department's evidence room showed little care was given to tracking guns, some of which ended up in the hands of officers who considered them as "perks of being an officer." . . .

Among the findings: Guns were taken for personal use and guns listed as destroyed were being used by officers; guns assigned to one officer ended up with another; guns reported stolen were never returned to owners but kept by officers; and weapons were "checked out" to city employees in other agencies and even to private citizens.

And this one:

A former Houston County deputy pled guilty to selling a gun to a convicted felon and supplying him with cocaine to sell, authorities said Monday.

Michael Shawn Campbell, 27, of Dothan pled guilty Monday to possession with intent to distribute cocaine and sale of a firearm to a convicted felon, the U.S. Attorney's Office announced.

Campbell, who was a deputy with Houston County's narcotic unit at the time, admitted to selling the gun and supplying crack cocaine to Joshua Whigan, an Ashford man Campbell knew to be a convicted felon, authorities said. Whigan reported Campbell to authorities and worked with the FBI and Ashford Police Department on the case.

Then there is this one, from Tallahassee, Florida:

A furious gun battle erupted inside a federal prison Wednesday when a guard opened fire on FBI agents who had come to arrest him and several others on charges of having sex with female inmates in exchange for money, alcohol and pot. Two people were killed and another was wounded.

The dead were the guard and a U.S. Justice Department investigator, according to a law enforcement official speaking on condition of anonymity because of the sensitivity of the situation. A prison employee helping with the arrest was hospitalized.

Six guards in all had been indicted Tuesday in an alleged sex-for-contraband scheme that authorities said went on for two years.

If my rights depend on the goodness of those who want to infringe on my rights, I really do not have any rights at all.

The End Of The Clone Wars

Between the Links and the new Politics in Alabama have already mentioned that Scotus yesterday rejected Alabama's appeal in Adams v. State. I have a few comments on the whole situation.

Adams was the case about which Alabama Supreme Court Justice Tom Parker wrote his now infamous editorial slamming the rest of the Alabama Supreme Court for following the U.S. Supreme Court's ruling that states cannot execute people for crimes they committed as minors. Parker, aka Mini-Moore, wanted to give Scotus another chance to decide the issue.

Mini-Moore and a few other clones tried to turn this into a campaign issue. His new nullification theory did not have the desired impact. The incumbents stomped them in the Republican primary.

A.G. Troy King did appeal the Adams case, and now Scotus has finally ended the whole issue. Thus, even had the Alabama Supremes ignored Scotus, the result would still be no death penalty for Adams.

That is the story. Here are my concluding thoughts.

First, I agree with King and Mini-Moore that the Scotus case at issue was a bad decision. If Alabama can execute someone who was 18 at the time they committed the crime I see no constitutional reason why Alabama cannot also execute someone who was 17 at the time they committed the crime. (Read more on this point here).

Second, as we have all heard ad nauseum over the last few years, a judge's job is to apply the law. That is sometimes much easier said than done, but on this occasion it could not be easier. Scotus said no executing people who were under 18 at the time of the crime. Adams was under 18 at the time of the crime. Therefore, there is no execution for Adams. Whether or not the judge agrees with the result is irrelevant, the job is to apply the law.

Third, the Moore-on's arguments about nullification are perfectly reasonable arguments. There is nothing illogical about saying Scotus rulings are not 'law' like statutes are law, or like the Constitution is law. The problems are practical. Accepting them would mean a different Constitution for every judge in the country. If we want unity, then someone has to have the final word on the meaning of the Constitution.

Fourth, Troy King acted unprofessionally in filing this appeal. His rationale:

King said he owed it to the relatives of [the victim] to appeal. He denied the challenge was rooted in politics.

"I appealed it before it became an issue in anybody's political campaign," said King.

I will take him at his word that the appeal was not motivated by a desire to look good for his ravenous constituency. Even so, the appeal was still improper. The victim's family, important though they be, are NOT his clients. His client is the State of Alabama. He is spending Alabama's resources when he files appeals. So he ought to do so with caution and only when the appeal will benefit Alabama. This appeal had absolutely no chance of success. No one ever thought otherwise. King, therefore, wasted his client's resources and knew he was wasting his client's resources. That is unprofessional, to say the least.

Fifth, and finally, there is nothing conservative about asking Scotus to reverse a year old decision. Particularly not when the reason for the request is new members on the court. Cases cannot be re-argued over and over and over again. If we want stability in society, the losing side is going to have to accept the loss and move on. And asking the court to revisit unpopular decisions every time the membership changes is inviting the type of acrimony over judicial elections and appointments that has poisoned our political discourse for the last decade. Letting the decision stand provides stability in the law and reduces the politicization of the judiciary, both of which are conservative values.

America Haters

Soon enough, our Senate will consider an amendment banning flag burning. Alabama’s senators will support it, as both have done in the past. To them and their kind, I ask “Why do you hate America? Why do you hate freedom?”

I also offer these insights from much more intelligent people.

Dispatches from the Culture Wars:

One of the very first things that Hitler did upon seizing power in Germany was ban the burning of the German flag; the punishment was imprisonment. In China, where we all watched the student protestors at Tianenman Square burn the Chinese flag, their actions result in a minimum of 3 years in prison. The other two nations that punish those who burn their flag at the moment: Cuba and Iran. And what was Senate Majority Leader Bill Frist doing on the 63rd anniversary of the Barnette [more on this below] ruling? Holding a press conference to announce that he’s bringing a proposed constitutional amendment to ban flag burning up for a vote in the Senate. Those who forget history, as they say…

Prof. Eugene Volokh:

America is different from most other countries, and even from most other democracies. In America, all ideologies are protected, even those that the majority thinks are evil.

Why is this right? Because the First Amendment was drafted and interpreted by people who intimately understood cultural, religious, and political conflict, and who knew how calls for censorship could launch the most bitter of culture wars.

The Amendment is a truce: “I won’t try to suppress your ideas, if you don’t try to suppress mine.” And the flagburning amendment risks shattering this truce.

Finally, as DCW points out, yesterday was the anniversary of West Virginia State Board of Education v. Barnette. In that case, Scotus held that public schools cannot force students to salute the flag. An earlier case gave schools the green light to do just that. The earlier court’s rationale:

‘National unity is the basis of national security,’ that the authorities have ‘the right to select appropriate means for its attainment,’ and hence reaches the conclusion that such compulsory measures toward ‘national unity’ are constitutional.

Barnette’s response, written by Justice Jackson (emphasis added):

National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement.

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. . . .

Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. . . .

The case is made difficult not b ecause the principles of its decision are obscure but because the flag involved is our own. . . . To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

Those word were spoken in 1943. Even in the middle of World War II, the Court recognized the importance of these principles. We know what Shelby and Sessions will do. Hopefully the rest of our leaders have a bit more wisdom than Alabama’s two senators.  

Scotus Update: Hill v. McDonough

The Court issued a decision yesterday concerning the manner in which prisoners can challenge the method by which the state will execute them.

Troy King is on vacation, so one of his underlings responds for Alabama:

The U.S. Supreme Court's decision Monday allowing inmates to file last-minute challenges to lethal injection will likely delay executions in Alabama — possibly for years."These victims' families are not going to have any closure and have to go through another layer of appeals," said Clay Crenshaw, chief of the attorney general's capital litigation unit. There are currently 193 inmates on death row in Alabama.

On the other hand:

Death penalty opponents said the unanimous decision ought to prompt a thorough review of Alabama's execution procedures."It shows an understanding that we need to take a closer look at the death penalty and lethal injection in particular," said Esther Brown of Lanett, executive secretary of Project Hope to Abolish the Death Penalty.

I don't think either of these two are correct. The case is not a big deal.

First, the background. Like all criminal cases, in capital cases you have three levels of litigation. Technically, only the first is the appeal. It is called the direct appeal. After the defendant loses at trial, the state courts will hear his claims of error. This is limited to the record as it exists at the end of the trial.

If they affirm, then the process moves into what is generically called "post-conviction proceedings." In Alabama it is known as a Rule 32 proceding.  This is not really an appeal. It is more like a lawsuit between the defendant and the state. The purpose of Rule 32 is to give the defendant a chance to raise claims he could not raise on appeal. For example, suppose the state failed to turn over some exculpatory evidence, but the defendant only discovers this while his direct appeal is pending. He could not raise it on direct appeal, because that is limited to the record of the trial. Or suppose his attorney failed to investigate his case, and then the same attorney represented him on appeal. There would be no chance to argue that his attorney was constitutionally ineffective. Like the initial trial, Rule 32 proceedings start in circuit court and work their way to the state supreme court.

Once the defendant loses there, he can file a habeas corpus petition in federal court. Again, this is more like a lawsuit than an appeal. Here, though, the defendant is arguing that the state is holding him in violation of the constitution.

All these levels of litigation concern the fact of the imprisonment. What if the manner of the imprisonment is unconstitutional? Say, for instance, the state refuses to provide food or water to the inmate? The remedy is a section 1983 lawsuit. Section 1983 was enacted after the civil war and gives private citizens the right to sue for civil remedies when the state deprives them of constitutional rights. 

That is what Scotus was considering in yesterday's case. The issue was whether a lawsuit challenging the manner of execution was more like a suit challenging the manner of incarceration, and so properly brought under 1983, or else more like a challenge to the fact of incarceration and so properly brought as a habeas challenge.

The reason the state wanted the latter conclusion and the inmate the former is that habeas procedures are extremely anti-defendant. 1983 proceedings are more even handed.  Scotus chose 1983, because the defendant was not arguing that the state could not kill him, only that it could not kill him in a particular way.

I say this is not a big deal for a few reasons. First, the ruling only concerns the manner of the challenge; it does not say the defendant will ultimately succeed in his suit. 

Second, the Court made very clear that lower courts are under no duty to grant a stay of execution in order to hear the claim when inmates bring them at "the eleventh hour."

a stay of execution is an equitable remedy. It is not available as a matter of right, and equity must be sensitive to the State’s strong interest in enforcing its criminal judgments withoutundue interference from the federal courts. . . . 

Thus, like other stay applicants, inmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits. . . .

A court considering a stay must also apply "a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay."

Third, and finally, even if the inmate wins the suit, the result will still be execution, just by a different procedure.

So, while it may take a bit longer, Alabama will still be able to execute all 193 people on our death row.