Wow, this is pretty big news and Balko found it. In last week’s Hudson ruling, Scalia makes the following argument as a reason why it was not necessary for the judiciary to enforce the knock and announce rule because there are safeguards in place within the law enforcement community to take care of the problem:
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, United States v. Payner, 447 U. S. 727, 733-734, n. 5 (1980), 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.” S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950-1990, p. 51 (1993).
S. Walker is Prof. Sam Walker of UN-Omaha, a criminologist. Balko talked to Walker to see if Scalia was representing his work accurately and this is Walker’s response:
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.
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.
Let me add one more irony to the mix: Scalia’s ruling essentially guts an earlier case, Wilson v Arkansas, that is an absolutely originalist decision. That case, written by Clarence Thomas for a unanimous court, declared that the knock and announce rule was intrinsic to the 4th amendment and a key criteria for determining whether a search was unreasonable. And Thomas’ ruling was a quintessentially originalist one, tracing the knock and announce rule back to our nation’s founding and even back to common law precedent. Thomas wrote:
In evaluating the scope of this right, we have looked to the traditional protections against unreasonable searches and seizures afforded by the common law at the time of the framing. “Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable,” New Jersey v. T. L. O., 469 U.S. 325, 337 (1985), our effort to give content to this term may be guided by the meaning ascribed to it by the Framers of the Amendment. An examination of the common law of search and seizure leaves no doubt that the reasonableness of a search of a dwelling may depend in part on whether law enforcement officers announced their presence and authority prior to entering.
So we have a unanimous court, including Thomas and Scalia, declaring that the knock and announce rule is an intrinsic part of the 4th amendment, making it absolutely binding upon both federal and state law enforcement to follow, yet now those same two justices have signed on to a ruling that says that there is no judicial remedy for violating that law. Now what do you suppose is going to happen when an important part of the constitution’s protections cannot be enforced by the courts? You’re gonna get a whole lot more violations of it. This is a stunningly incoherent ruling from Scalia.