Analysis: Exclusionary rule in trouble?
The Supreme Court’s 5-4 ruling on Thursday in the Michigan “knock-and-announce” case raises significant new questions about how sturdy the “exclusionary rule” is as a remedy for constitutional violations by police — especially, but not solely, Fourth Amendment violations. It also suggests — perhaps more strongly — new doubt about the continuing validity of the “knock-and-announce” rule. Those implications seem to emerge in some of the language used, and certainly between the lines, of the ruling in Hudson v. Michigan (04-1360). The three opinions in the case can be found here.
When the case was argued on May 18 (the second of two arguments in the case this Term), it seemed clear that a major Fourth Amendment ruling was in the making. The final opinions justify that impression.
The bare holding of the case is simple: if police have a warrant to search a home, and they enter in a way that violates their constitutional duty to knock first and announce themselves, the evidence turned up in the search can be used in a criminal prosecution.
Some background on the case, before getting to the ruling’s implications: In August 1998, several Detroit police officers went to the home of Booker T. Hudson, Jr., to conduct a search with a warrant. When the officers arrived, they did not see any activity going on inside and heard no noises. Even so, they entered within 3 to 5 seconds after announcing their presence at the door. They then forced their way in. Inside, they found cocaine and a gun. Hudson was charged with possession of the drug and possession of the gun during the commission of a felony. He was convicted on the cocaine count, and sentenced to 18 months on probation. He had failed in an attempt to suppress the evidence because of the violation of the knock-and-announce rule. The case reached the Supreme Court on the premise that that rule, indeed, had been violated. The question before the Court was the remedy for that violation: suppression of the evidence, or not?
The case was initially argued in the Court on January 9, when Justice Sandra Day O’Connor was still on the Court. The Justices on April 19 ordered it re-argued, after O’Connor had been replaced by Justice Samuel A. Alito, Jr. On Thursday, Alito joined in the majority opinion written by Justice Antonin Scalia. It now appears that the Court, after the departure of O’Connor, was divided 4-4 as it deliberated on the case, leading to the second argument with Alito participating.
The Scalia opinion, in concluding that the “exclusionary rule” was not available to Hudson or to anyone faced with a knock-and-announce violation, relies on two fundamental theories, both of which pose questions about how far the decision may ultimately reach, or what future changes in constitutional doctrine it may portend.
First, the Court made clear — with an emphasis not previously employed — that it will insist on a demonstration that the interest that a constitutional right serves will, in fact, be directly advanced by barring the evidence obtained from a violation of that right. Thus, it would not matter that the violation itself was the source of the evidence, if the right would not gain from excluding the evidence. As Justice Scalia summed up that point: “What the knock-and-announce rule has never protected…is one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.” Thus, at least in the context of the knock-and-announce rule, a Fourth Amendment violation that makes a search invalid will not keep out the resulting evidence. The notion that a violation necessarily makes the entire search unlawful, requiring suppression of resulting evidence, no longer has validity when the violation involves a failure to knock and announce.
It may take a number of future decisions, involving rights other than the “knock-and-announce” rule, to determine which other rights the Court will regard as having a social value that depends for its hardihood upon the remedy of the exclusionary rule. The kind of direct linkage that the Hudson decision demands between the rights and that rule, in order to deploy “the massive remedy of suppressing evidence of guilt,” might well be found to be lacking when a different Fourth Amendment or Fifth Amendment right has been breached. The weighing of other rights under those Amendments against the loss of evidence may well place a higher value on the latter than on the former, at least as to some rights.. For example, does the protection against a false arrest, for example, justify suppression of contraband or a confession that follows? In general, just when is evidentiary “fruit” so closely related to the “poisonous tree” of a violation that it must be suppressed, and how “poisonous” is the violation in social value terms?
In the course of discussing this first theory, the opinion regularly employs language that questions the real value of the knock-and-announce rule. The privacy interests are analyzed in less-than-expansive ways, especially when contrasted with the opinion’s lament over the loss of criminal evidence. The right at issue, the opinion remarks at one point, is a “right not to be intruded upon in one’s nightclothes.” It also places much stress on the uncertainties that police confront in trying to obey the knock-and-announce rule. It does not directly question that the rule remains alive, but it relies mainly on a concession by the state of Michigan for that proposition.
In articulating a second theory as critical to the Hudson decision, the Court made clear that its views may be changing on the value of the exclusionary rule in deterring police misconduct. It exhibited a greater willingness than it has in the past to trust police officers to avoid constitutional violations, and a belief that that trust can better be reinforced by means other than judicial suppression of evidence that is vital to successful criminal prosecutions. This theory was most vividly in display in Justice Scalia’s analysis of present-day deterrents that may keep police in line. “It seems to us not…true, as Hudson contends, that without suppression there will be no deterrence of knock-and-announce violations at all,” Scalia wrote.
The Court would not assume, he said, that exclusion of valuable evidence “is necessary deterrence simply because we found that it was necessary deterrence in different contexts and long ago.” One alternative deterrent, he went on to suggest, was the right to bring a civil rights damages remedy, something that has expanded considerably in the past half-century. That deterrent is bolstered, he added, by a civil rights plaintiff’s right to recover legal fees, making that remedy more available and attractive. “Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on interrnal police discipline….It is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.”
Those forms of deterrent, of course, would not necessarily be at play only regarding the knock-and-announce rule. In a future case, involving a different right, they could be found to be equally persuasive alternatives to the exclusionary rule.
It should be noted that Justice Anthony M. Kennedy, whose vote was necessary to make a majority, wrote a separate opinion. He sought to minimize the potential impact of the ruling. The decision, he said, “should not be interpreted as suggesting that violations of the requirements [of knock-and-announce] are trivial or beyond the law’s concern. Second, the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt.” At the same time, however, Kennedy embraces all parts of the Scalia opinion, including the theories relied upon, but does not join a section dealing with whether prior precedents dictated the result — a section that had little, if anything, to do with the broader significance of the decision.
Is this kicker by Kennedy relevant?
“In this case the relevant evidence was discovered not because of a failure to knock-and-announce, but because of a subsequent search pursuant to a lawful warrant. The Court in my view is correct to hold that suppression was not required.”
Scalia focuses on the remedy, not the violation, which the state admitted to.
Comment by Joe — June 15, 2006 @ 3:06 pm
Joe, Justice Kennedy’s comment caught my eye too, but its terseness makes it ambiguous. He could just mean the general obvious point that breaking in didn’t lead to the evidence, it was just a preliminary to executing a probable cause warrant. Problem is, he might have meant, without reasonable explication, that in this case there was no possibility of destroying the evidence in a supposed interval between knock and entry/seizure. In that interpretation, the justice would be defending the 4th A. “right” to have a fighting chance to escape detection, a point that has actually been made in separate opinions over the years (to my dismay).
Comment by rodgerlodger — June 15, 2006 @ 3:13 pm
Justice Scalia’s analysis of present-day deterrents that will keep police in line is: One alternative deterrent was the right to bring a civil rights damages remedy, something that has expanded considerably in the past half-century. That deterrent is bolstered by a civil rights plaintiff’s right to recover legal fees, making that remedy more available and attractive. “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….It is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.”
Is this the same Court that just had the prosecutor who blew the whistle on cops for framing an innocent man, and it got him [the prosecutor] FIRED, and the Court held the govt IMMUNE from civil rights liabilty- – - And now they say the cops can be dissuaded from violating citizens’ constitutional rights for fear of NOT being PROMOTED or LIKED by their own law & order superiors / supporters?
Please give me mercy!
Screwloose
Comment by Screwloose — June 15, 2006 @ 5:07 pm
“In articulating a second theory as critical to the Hudson decision, the Court made clear that its views may be changing on the value of the exclusionary rule in deterring police misconduct.”
Actually, the Court changed its views 30 years ago. Stone v. Powell, 428 U.S. 465 (1976) began a series of decisions pruning back the exclusionary rule. Whenever the question was whether to extend the rule to a situation not previously covered by Supreme Court precedent, the Court has always weighed deterrence against the truth-defeating effect of suppression in a cost-benefit analysis, and suppression consistently loses. This thread continued through the Pennsylvania case noted in my previous comment, and it continues in Hudson today.
It does not follow that the Court is going to overrule precedents which would not have been decided the same way under the standards of this case. Justice Kennedy’s concurrence, for one thing, gives notice that there are not five votes for that.
Finally, it is important to distinguish cases on the exclusionary remedy from cases on the scope of the Fourth Amendment. Defendants continue to win the latter kind, including Kyllo and Randolph. Despite the continued insistence of the criminal defense bar that the scope of the Fourth Amendment and the scope of the exclusionary rule are the same, they are not, and they haven’t been for a long time.
Comment by Kent Scheidegger — June 15, 2006 @ 5:15 pm
Let me see if I understand this. For minor amounts of drugs (because they are easy to dispose of) the government is entitled to break down your door.
OTOH if the drugs are not so easily disposed of a knock and wait rule would be more appropriate.
You might as well say that a no knock warrant is appropriate for jay walking but knock and announce is right for hit and run.
It is obvious that drugs make people crazy.
Of course we have had great success solving medical problems with law enforcement. Once the police have the drug problem in hand perhaps they could do cancer. I hear alcohol is still a problem too.
Comment by M. Simon — June 16, 2006 @ 4:26 am
The “exclusionary rule” has always looked to me like cutting off your nose to spite your face. Surely if the police break rules catching a criminal, prosecute or discipline those police, don’t do a deliberate injustice to the criminal’s victim.
Comment by Julian Morrison — June 16, 2006 @ 5:32 am
This is a very sad decision. Justice Scalia’s belief that 1983 suits and “the increas[ed] professionalism of police forces” will serve as an effective deterrent just plain ignores reality. The aggrieved party needs to find an attorney willing to take on the 1983 suit, both financially and competency-wise. That is no mean feat. Furthermore, I guess recent examples of NYPD “professionalism” such as shooting an unarmed person 19 times, and raping an arrestee in the precinct bathroom with a broken broomstick handle are what the Justice was thinking of. Methinks he is best off with his buddy the VEEP shooting innocent birds than preserving the rights the Framers gave us.
Comment by BernieK — June 16, 2006 @ 8:27 am
The rationale of this decision disregards 500 years of common law wisdom since Semayne’s case. We can expect an upsurge in unannounced SWAT raids and the shooting of both the bad and the good. A typical newspaper account follows, but there are many many more:
“According to Radley Balko, Cory Maye, a man with no criminal record, defended himself against a SWAT Team member who, at the wrong residence, broke down his door without knocking:
As the raid on Smith commenced, some officers – including Jones — went around to what they thought was a side door to Smith’s residence, looking for a larger stash of drugs. The door was actually a door to Maye’s home. Maye was home alone with his young daughter, and asleep, when one member of the SWAT team broke down the outside door. Jones, who wasn’t armed, charged in, and made his way to Maye’s bedroom. Because police believed Maye’s side of the duplex was still part of Smith’s residence, they never announced themselves (Note added on 12/0/05: Police said at trial that they did announce themselves before entering Maye’s apartment — Maye and his attorney say otherwise. I’m inclined to believe Maye, for reasons outlined in this post. However, even if they did, announcing seconds before bursting in just before midnight, isn’t much better than not announcing at all. An innocent person on the other end of the raid, particularly if still asleep, has every reason to fear for his life.). Maye, fearing for his life and the safety of his daughter, fired at Jones, hitting him in the abdomen, just below his bulletproof vest. Jones died a short time later.”
Michael R. Levine
Comment by supremecourt — June 16, 2006 @ 9:46 am
Berniek, I think what you say is a fair criticism of the ruling. At the same time, however, I think you also ignore the realities of being a police officer executing a warrant while not knowing what is behind the door. When people think of what types of danger police officers confront while executing arrest and search warrants, I can give you a list of instances where police were shot and killed. The court merely balanced the equities in the use of the exclusionary rule as a remedy for a violation, and held that the societal cost did not justify the deterrance benefit.
Comment by percuriam — June 16, 2006 @ 9:55 am
I am sorry, but I must respond to “percuriam”. And, I can give you instances of many innocent people shot by cops and then the cops tried to cover it up. I cannot you believe that you are a criminal law practitioner. The police, FBI, DEA, DAs, US Attys, etc., are, at best, sanctimonious [a word most cops would not understand], arrogant, abusive, have no trepidation about lying, etc., etc. Permitting the cops to just burst in, is a policy that will be abused, to the point that more innocents AND cops will be shot. I have represented cops on the receiving end of prosecutions, and they quickly become converts. You should, too.
Comment by BernieK — June 16, 2006 @ 10:26 am
I agree Stone v. Powell led to the present state of affairs. I disagree that the remedies are mutually exclusve, your unstated premise. Who wants the FEWEST and WEAKEST remedies to protect citizens’ costitutional rights? Don’t we deserve the MOST and STRONGEST remedies to vindicate the violation of constitutional rights? Thus, yes, exclusionary rule AND, yes, civil liability AND, yes, civil service review AND, yes, civilian review; NOT the disjunctive remedying of rights you and the Roberts Court advocate.
Comment by Screwloose — June 16, 2006 @ 10:30 am
Berniek. I can assure you that in my job, I deal with search and seizure issues almost on a daily basis. You seem to assume that as a result of the ruling, police do not have to k&A. I don’t think that was the effect of the ruling. the court held that whether police k&a is a part of the reasonableness inquiry, but that suppression was not justified in that case. I am willing to bet that police will still k&a. Unfortunately, some people may be injured (innocent people included) when corruption or mistake happens. Moreover, how does k&a deter a situation where there is a mistake about the identity of an individual or location to be searched?
By your comments, it is clear that you have a negative opinion about law enforcement and prosecutors in general. I suggest instead of trying to “convert” people to your skewed view of law enforcement, we have an emotion free discussion about how the exclusionary rule should work.
Comment by percuriam — June 16, 2006 @ 10:59 am
“Percuriam”, I agree 100% that the postings should be limited to a discussion of the case and its devastating impact on the exclusionary rule. However, [and there is always a 'however'], my “skewed view of law enforcement” is based upon a quarter century of criminal practice [state and federal] in NY [among other areas]. I wish, hope and pray that the police and prosecutors actually cared about [1] getting the actual perpetrator and not clearing the case, and [2] they did it within the confines of the Bill of Rights, that protects them too. But, unfortunately, if history be a predictor then this will not occur, and the authorities will use Hudson to totally eviscerate the “knock” rule.
Comment by BernieK — June 16, 2006 @ 12:16 pm
Screwloose – I think there is a balance. People are not perfect and do make mistakes. When implementing Constituional protections, we should not always resort to the strongest remedy when the mistake could be minor. Rather, for any given defect, the remedy should fit the infraction. Here, where the infraction was minor at best, and there was a valid search warrant, the remedy of exclusion was particularly drastic. The strongest remedy of exclusion may be bad for society, as it undermines faith in the criminal justice system and increases the level of crime. For every police brutality horror story posted here, I bet there is one describing someone who should have been in jail on exculded evidence and later went on to commit some horrible crime. Given the social cost of exlusion and the minor defect presented in this case, I’d rather see a fair remedy with a just result.
Comment by Ben Kennedy — June 16, 2006 @ 12:56 pm
Ben, you sound like one of those writers for the NY Post who complains about defendants being set free on a “technicality”. It is those same “technicalities” that have, for 200 years, protected you, me, and the rest of us from the innate desire of the state to suppress and imfringe on our liberties. I am sorry, as a criminal defense lawyer I have to take the position that it is only the most draconian of remedies that ever limits the natural propensity of the police to solve any case with any method available. Excluding coerced confessions prevents the police from using physical and psych. pressure on defendants. Vacating a conviction due to a 6th Amend. violation [a la Gideon] is what makes sure the cops Mirandize defendants. Look, how many times have you seen where DNA evidence has cleared a def., but the DA still insists on the person’s guilt. So, please, no more about DAs doing their job.
Comment by BernieK — June 16, 2006 @ 1:32 pm
BernieK,
Could you please provide us with the citation to the 200 year old decision suppressing evidence in a criminal case as a remedy for an illegal search or seizure. Thanks.
Comment by Kent Scheidegger — June 16, 2006 @ 2:09 pm
BernieK – should our criminal justice use the most draconian remedy (execution) to deter people’s “natural propensity” to steal? Of course not – it is simple not fair. The state is not some faceless, liberty-hating monster – it represents the will of the people and the desire for safety and fairness. The Constitution provides a forum for disputes to play out in such a manner so that no-one can say the outcome, whatever it may be, was unfair. However, when extreme remedies for minor defects put otherwise guilty people back into society, it has hard to say that the outcome was fair at all. Is it really fair a community to suffer more crime because a police officer didn’t wait a few extra seconds? Draconian remedies are appropriate for extreme abuses, but not for minor ones
Comment by Ben Kennedy — June 16, 2006 @ 2:49 pm
BernieK: “I am sorry, as a criminal defense lawyer I have to take the position that it is only the most draconian of remedies that ever limits the natural propensity of the police to solve any case with any method available.”
This statement certainly explains a lot about your point of view. I guess this is similar in logic as follows: “I am sorry, as a citizen who wants to prevent crimes, I have to take the position that only the most draconian of penalties that ever limits the natural propensity of those with criminal intent to commit future crimes.”
Comment by percuriam — June 16, 2006 @ 3:09 pm
A few brief points, gentlemen:
1. “[the state] represents the will of the people and the desire for safety and fairness.” Well, [and this relates to Kent's query] if the state were as Locke proposed, yes that’s true. But, with a government that feels it can use Natl Security Letters to find what books I checked out from the library, or have the NSA mine data on millions of Americans, or avoid the strictures of FISA in the name of “national security”, I think that the idea the state represents the wishes of the people is absurd.
3. As to the need for “Darconian penalities”, I guess adopting sharia will please some of you, and OBL will have won.
Comment by BernieK — June 16, 2006 @ 3:49 pm
BernieK, you are making less sense than your previous posts. With regard to:
“I think that the idea the state represents the wishes of the people is absurd”
The state by definition represents the wishes of the people – maybe not perfectly, but this is not a perfect world. Do you claim we no longer live in a representative democracy? There are Constitutional remedies for unacceptable abuses of power, and of course elections to bring priorities of the government back in line with those people.
“As to the need for ‘Darconian penalities’, I guess adopting sharia will please some of you, and OBL will have won.”
I have no idea this is coming from – all I am stating that that draconian penalties are appropriate only for monstrous offenses. Or, more generally speaking, punishments should simply be fair. I don’t like the idea of emotional testimony from victims as sentencing, as this can lead to different punishments for the same act. I really don’t like it when people are prosecuted for lying (e.g. Bill Clinton or Martha Stewart) as this is a prime example of unequal treatment – “regular” people never get prosecuted like that.
I know very little about Sharia, but if it includes disproportionate punishments, that is is not a just system. Why do you assume that people who diagree with you want a religous theocracy?
Comment by Ben Kennedy — June 16, 2006 @ 4:35 pm
Ben, back to the law. Punishments should neither be cruel nor unusual. The incredible amount of time that that Title 18 and the USSG provide for drug offenses as opposed to crimes of violence is an example of draconian punishments. As to prosecuting people for lying: yes Pres. Clinton and Martha Stewart were victims there [but in the latter case it may well have been poor lawyering, too]. Unfortunately, I have seen far too often where defendants go in for a proffer and tell their side of the story, this differs with that of the rat, there is no deal on co-operation and the govt indicts for lying.
We likely are more in agreement than disagreement, and I think there are far worse decisions of the Supremes that merit this type of give/take.
Comment by BernieK — June 16, 2006 @ 4:49 pm
BernieK – I agree with you on drug offenses, I would tend to agree with Justice Thomas that the whole CSA is an unconstitutional exercise of federal authority. I don’t understand your middle point (not too familiar with the terminology). To your third point, what are some of the cases your are thinking of?
Comment by Ben Kennedy — June 16, 2006 @ 5:12 pm
Ben Kennedy wrote:
“Should our criminal justice use the most draconian remedy (execution) to deter people’s “natural propensity” to steal? Of course not – it is simple not fair. The state is not some faceless, liberty-hating monster – it represents the will of the people and the desire for safety and fairness.”
I have to disagree. The state implements practice in response to the concerns and desires of the majority of its constituents balanced against the concerns and desires of those who maintain the government’s (and politician’s) power.
Many citizens react to current events with knee-jerk reactions, such as “get tough on crime” (for example: California’s three strikes) without ever considering the broader implications, such as the diversion of state resources for prisons, overcrowding, increased recidivism due to lack of vocational and educational rehabilitation, high burdens on parolees, lack of meaningful support.
The same citizens who decry the criminal who “gets away” on a constitutional issue (or technicality), which would have happened if this case had gone the other way, may have a negative reaction to the man who gets shot defending his own home when the police make a mistake or are misinformed and burst in at 2am. “The will of the people” blows hot and cold; the law needs to be a bit more stable.
As for “Draconian,” the remedy needs to deter the behavior. Officers won’t get passed over for not knocking if they get the bad guy so it’ll be a game of chance–if they get the bad guy, bully for them; if they are wrong they get to go back three steps unless an innocent gets hurt. It’ll be taken as a risk, and risks are involved in getting ahead.
The exclusionary rule is quite the deterrent; not getting advanced if things go badly probably won’t be. Perhaps the balancing test should be the seriousness of the crime—but then that doesn’t work because drug crimes are considered very serious (sorry, I still don’t get this one when compared to violent crime and corporate fraud—drugs are vice, and, well, I’ll save that for another day). Murder is serious, maybe even possession of a firearm by a felon previously convicted of a crime involving a weapon.
I suppose we’ll have to wait and see. I just hope my name never shows up on a suspect list. My house is my home, and if someone comes in in the middle of the night, I’m shooting first and we’ll sort it out later. Maybe that’s the whole point–the silk stocking set maybe concerned about being met by the police in their night clothes–me, I’m more concerned about getting killed. (BTW, what’s up with the paragraphs? (I’m new here)
Comment by Rich Smith — June 16, 2006 @ 6:25 pm
Ben, what is my middle point, what is my third point? if you are speaking of the proffer session scenario, these are not reported cases; just a matter of federal practice, and dealing with the US Atty’s office for many years. If you asking about Martha: why did her lawyer have her go into US Atty and speak with them? I do not get it. It was clear to me that she was the top of the pyramid. I would never proffer on the top guy, you have nothing to offer. And, all you end up doing is exposing your client to a sec. 1001 charge. Which is what they nailed her on. Duh-uh! Read the 2d Circuit’s op., Part 2.d. IT is painful as a defense lawyer to read that. Poor Martha was in the SDNY’s cross-hairs from day one. While not a personally sympathetic character, ther is no doubt she was F’d royally by the feds.
Are you asking about other S. Ct. cases that may be more egregious than Hudson?
Comment by BernieK — June 16, 2006 @ 9:13 pm
I understand your Martha point now – yes, it seems like she did get some bad advice. And I was curious from your point of view as a criminal defense lawyer which Supreme Court decisions you think were more unfair to this one. I think that it is probably true that those people who have never been arrested, don’t know anyone who has been arrested, and see heroic upstanding law enforcement portrayed on TV probably have an unrealisic level of trust regarding law enforcement, though I’m still not convinced that this particular case was decided incorrectly. I don’t see how a defective entry contributes to an unfair trial.
Comment by Ben Kennedy — June 16, 2006 @ 9:36 pm
In Hudson, Scalia talks of civil lawsuits as an effective deterrent (i.e. – an alternative to the exclusionary rule) and how that’s been bolstered by the authorization of attorney’s fees for civil-rights plaintiff’s. As he so eloquently notes, “This remedy was unavailable in the heydays of our exclusionary-rule jurisprudence, because it is tied to the availability of a cause of action.” According to him, since some violations would yield damages too small to justify the expense of litigation, 42 U.S.C. § 1988(b) has come to the rescue and allowed attorneys to be paid despite any small judgments for the plaintiff.
Not so fast, Nino.
As a decision out of the Tenth Circuit from earlier this year makes painfully clear, that’s not always true, and it certainly wouldn’t be true for Hudson himself. This is a case that should be on everyone’s radar as they so passionately discuss the merits of civil lawsuits to combat violations of the Fourth Amendment rather than applying the exclusionary rule.
Ralph Robbins (the plaintiff) was arrested for several outstanding traffic warrants against him. During his apprehension and arrest, the police officer smashed the driver’s side window of the vehicle Robbins was in. He was eventually charged and convicted of aggravated assault on a law enforcement officer and incarcerated.
While he was in prison, he filed a § 1983 lawsuit alleging violations of the Fourth Amendment by the officer during his arrest. The court ruled that the use of force in breaking the car window in an effort to arrest the plaintiff was unreasonable, but because he suffered no physical injuries he was awarded only nominal damages of $1.00. That’s one dollar.
It’s imperative to note that damages in a § 1983 action must be based on damages actually suffered, as the purpose of such a lawsuit is to compensate persons for injuries caused by the depravation of constitutional rights. Memphis Community School District v. Stachura, 477 U.S. 299, 307 (1986) (citing Carey v. Piphus, 435 U.S. 247, 254, 257 (1978). Courts have permitted awards of compensation for the emotional shock or physical harm caused by an unconstitutional search or seizure. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (emotional damages for unconstitutional search of apartment and arrest).
Nonetheless, absent actual injury, only nominal damages recoverable for § 1983 violations unless punitive damages are awarded to deter or punish the malicious deprivation of rights. Piphus, Id. at 254-55.
Now back to our $1.00 victory for the plaintiff in this case.
The plaintiff’s lawyer sought attorney’s fees under § 1988 (remember, Scalia’s “bolstering” reference in Hudson) and the court awarded $9,680. A panel of the Tenth Circuit upheld this award, 402 F.3d 1047 (10th Cir. 2005), but on rehearing en banc, the full court reversed and awarded the attorney a fee of $1.50. That’s one dollar and fifty-cents. 435 F.3d 1238 (10th Cir. 2006).
The court ruled that the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(d) limits attorney-fee awards in civil-rights suits filed by prisoners to 150% of the money judgment. It did not find this outcome to be absurd. The panel stated:
“Certainly, Mr. Leatherman’s performance at oral argument before this court indicates how fortunate Mr. Robbins was to have such a compelling advocate on his side. But any temptation we may have to reward Mr. Leatherman for his service is overcome by our duty to respect an Act of Congress.”
$1.50 to litigate a Fourth Amendment claim under § 1983 all the way up through an en banc panel of a federal appeals court.
So what’s the upshot of all this?
Smashing down your front door and raiding your home in violation of the knock-and-announce rule to execute a warrant (like smashing the driver’s side window of a vehicle you’re sitting in to arrest you on outstanding warrants) might well violate the Fourth Amendment, but unless you suffer physical injury – or death – you’re likely to receive only nominal damages (unless your able to successfully prove intentional or malicious misconduct on the part of the officers).
And if you’re in jail, whether because of the original charges leading to the raid or derivative evidence discovered thereafter (remember, no more suppression after Hudson), your attorney is severely limited in the amount of fees they’re entitled to.
Remember, it makes no difference that the misconduct occurred before the plaintiff’s conviction or incarceration. The court flatly rejected any interpretation of the PLRA that limited it to litigation concerning their post-incarceration treatment. “We see nothing absurd about reducing that incentive for all civil-rights claims filed by prisoners, not just those challenging conditions in prison.” 435 F.3d at 1244 (emphasis in original).
So Scalia’s rose-colored vision of § 1988 coming to the rescue of those civil-rights claims which don’t provide large judgments is, at least partially, inaccurate. Yet, this is being touted as an effective alternative to the exclusionary rule which will serve as a deterrent to police misconduct.
Unless you’re injured, killed, or completely innocent and not jailed (i.e. – police raided the wrong house and didn’t discover any other incriminating evidence during their unannounced visit), you cannot collect anything in damages that will make it worth the while of any attorney out there to take on your case (except those willing to do it pro bono).
With both state and federal legislatures currently engaged in a serious wave of tort reform and capping of attorney’s fees, it’s unlikely that any exception is going to be opened up to allow meaningful Fourth Amendment claims (i.e. – those which would operate as effectively and efficiently as the exclusionary rule) on behalf of “criminals” and those who are otherwise presumed guilty.
When the police violate the knock-and-announce rule (at least as it now stands in my home state of Florida because we’re chained to SCOTUS Fourth Amendment decisions via a 1982 amendment to our state constitution), you get convicted and nothing happens to the police (absent the aggravating circumstances mentioned above). When you can violate a rule or the law without any consequences then the rule is meaningless. It may as well not even exist.
Some might find this perfectly acceptable, but it certainly undermines the significance of the Court’s decision in Wilson, 514 U.S. 927 (establishing the knock-and-announce rule as part of the reasonableness requirement of the Fourth Amendment). Moreover, I’ll quote professor Wayne R. LaFave (a highly recognized preeminent authority on the Fourth Amendment) who has said: “The violate now and pay later character of the tort remedy would permit the government to buy itself out of having to comply with constitutional commands. To abolish the exclusionary rule and replace it with an action for damages against the government treasury is to have the law speak with two voices. The Fourth Amendment does not grant the government the discretion to decide whether the benefits of infringing the public’s right to be protected from unreasonable searches and seizures are worth some expenditure of the public’s funds; the language of the amendment is an affirmative command.” Search & Seizure, § 1.2(c) (3d ed. 1996). We’re headed for serious trouble when we start permitting the police to violate the constitution based upon the dollar value we attach to their misconduct.
Back to the Robbins decision from the Tenth Circuit, I’m going to borrow from a post over at appellatedecisions.blogspot.com:
“So Robbins’ attorney did all that work for free. But as a consolation prize, the Court applauds his performance at oral argument, calling to mind a certain credit card advertisement:
Winning a civil rights case . . . $10,000 . . .
Losing on appeal . . . $1.50 . . .
The unanimous praise of an en banc panel of the Tenth Circuit . . . priceless.”
I’ll add one more to that list:
The value of the knock-and-announce rule after Hudson . . . . worthless.
Comment by David — June 18, 2006 @ 4:04 am
God Bless America, where the only people who don’t have to knock before entering our homes are the police. Hudson v. Michigan, 2006’s
version of the 4th Amendment.
To all the men whose dream was to own their own home in which to live and raise a family, Happy Fathers’ Day!
Screwloose
Comment by Screwloose — June 18, 2006 @ 3:50 pm
David, what is truly absurd with the Ralph Robbins example was that it was reasonable (not a civil rights violation) for the officer to fire gun shots through the windshield of car (which Robbins subsequently wrecked a few blocks away) hitting Mr Robbins two times, but smashing the window with the baton was somehow a civil rights violation. I’m hard pressed to now say that the officer owes Mr Robbins $10,000 after this incident. Besides, it seems like your real issue is with the PLRA, as in this incident there wasn’t any evidence to exclude.
Comment by Ben Kennedy — June 18, 2006 @ 4:13 pm
The Ralph Robbins example seems to point up the nonsense of some of these civil rights lawsuits in the first place. An officer demands that someone get out of the car, and the guy starts moving the car?? Seems to me that officers who shatter a car window in that case are not acting unreasonably.
In any event, it would be interest to look at an analogous situation, namely, the ability of police officers to use deadly force. Have studies been conducted to the rate of police officers refraining from the use of deadly force, even when authorized? If, as I suspect, police are doing so (i.e., often refraining from the use of deadly force), then maybe police can be trusted to follow the knock-and-announce rule in general.
Also, let’s not forget that the exclusionary rule is NOT a constitutional command. Yes, an exclusionary rule would be an effective means of enforcing knock and announce, but to say that this is simply a horrible decision (given the fact that the police would have found the evidence anyway) is over the top.
Comment by federalist — June 18, 2006 @ 7:58 pm
Federalist, that a cop does not use deadly force is, I think [and HOPE] based not upon the fear of a civil rights lawsuit, but more upon the impact of using deadly force. I do not think that most cops are trigger-happy madmen looking to shoot people. They may not be well-versed at all in the law, and take a dim view of a perpetrator’s civil rights, but that is a long way from wasting a perp.
And, yes, you are technically correct about the exclusionary rule, but, as the S. Ct. has stated many times, the rule is the most important effectuating tool to protect us from improper searches and seizures. See US v. Leon, 468 U.S. 897 (1984); Dunaway v. NY, 442 U.S. 200, 217-18 (1979). Do away with the exclusionary rule, or even dilute it as Hudson does, and you continue that creep towrds a diminution of our rights. Remember, the Framers included the right in response to the the King’s invasion of their homes without caring about due process and warrants. And, while the current chief of state may be as much a loon as Geo. III, he is there for another 2 years. [But, than again, Geo. III had as an advisor Lord North who knew when a war was lost and saving soldiers lives was most important.]
Comment by BernieK — June 19, 2006 @ 9:57 am
Not sure that the Bush comment is germane. This is not a case of the feds kicking someone’s door down . . . ., but rather state actors in a blue state.
Comment by federalist — June 19, 2006 @ 10:13 am
As regards Hudson, the only comment I can make is what Charlton Heston’s character says in the movie *Touch of Evil*: “A policeman’s job is easy only in a police state.”
Comment by Andrew Williams — June 20, 2006 @ 12:11 am
As regards Hudson, the only comment I can add is to quote Charlton Heston’s character from *Touch of Evil*: “A policeman’s job is easy only in a police state.”
Comment by Andrew Williams — June 20, 2006 @ 12:12 am