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.

To all the men whose dream was to own their own home in which to live and raise a family, Happy Fathers’ Day!

Screwloose

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.

“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)

“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?