Crime & Federalism

Prince George County Police Have a History of Violence

In Hudson v. Michigan, Justice Antonin Scalia wrote: "[M]odern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect."

Prince George County police officers are under scrutiny for killing Berwyn Heights Mayor Cheye Calvo's two dogs.  Unfortunately for Prince George County residents, their police officers enjoy killing animals.  Here is a similar story from November, 2007:

An Accokeek couple is demanding an apology after Prince George's County Sheriff's Deputies burst into their home and killed their dog - all because deputies went to the wrong address.

Pam and Frank Myers were tucked away in their home Friday night watching a movie when the warrant squad pounced....

"And I said, 'You just shot my dog," said Pam Myers, through tears. "I just wanted to go out and hold her a bit. They wouldn't even let me go out."

The couple's five-year-old boxer Pearl was killed. The deputy says he feared for his life. They say the dog would bark but was no danger to the deputies.

Of course, "The Sheriff's Department says it's investigating what went wrong." Yet no one has been punished or suffered any career consequences for killing a helpless dog for sport. 

Was Justice Scalia lying in Hudson?  Was he mistaken?  What am I missing? 

Prince George County Killers Attempt to Re-Write History

Police raided a Maryland mayor's home without a proper warrant, and shot one his black labs as the terrified dog ran away from police.  As it turns out, the police raided Mayor Calvo's house for no reason: 

Police say the couple appeared to be innocent victims of a scheme by two men to smuggle millions of dollars worth of marijuana by having it delivered to about a half-dozen unsuspecting recipients.

The two men under arrest include a FedEx deliveryman; investigators said the deliveryman would drop off a package outside a home, and the other man would come by a short time later and pick it up.

The police, unsurprisingly, are unapologetic: 

Prince George's County Police Chief Melvin High said Wednesday that Calvo and his family were "most likely ... innocent victims," but he would not rule out their involvement, and he defended the way the raid was conducted. He and other officials did not apologize for killing the dogs, saying the officers felt threatened.

Threatened by a black lab that was running away from them?  These police officers are cowards in every sense of the word.

Incidentally, police officers raided Calvo's home without first knocking and announcing their presence.  At first, they claimed that they had a no-knock warrant.  Under the law, police may not break down your door until their first "knock and announce" their presence.  When police have a "no-knock warrant," they are not required to knock and announce.  They can bust your door down with a battering ram.

It was later revealed that Prince George County police officers lied.  They did not have a no-knock warrant.  So what did the police do next?  They tried to create exigent circumstances after-the-fact:

But officials insisted they acted within the law, saying the operation was compromised when Calvo's mother-in-law saw officers approaching the house and screamed. That could have given someone time to grab a gun or destroy evidence, authorities said.

Funny how that works, isn't it?  First they said, "We raided Mayor Calvo's home because we had a no-knock warrant."  When that is revealed as a lie, they said, "We raided Mayor Calvo's home because his mother-in-law screamed."

Dog-Killing Cops Did Not Have No-Knock Warrant

The Prince George County police officers who broke down the doors of an innocent man, and shot one his black labs in the back, did not have a no-knock warrant:

Prince George's County authorities did not have a "no-knock" warrant when they burst into the home of a mayor July 29, shooting and killing his two dogs -- contrary to what police said after the incident.

Judges in Maryland can grant police the right to enter a building and serve a search warrant without knocking if the judge finds there is reasonable suspicion to think evidence might be destroyed or the officers' safety might be endangered in announcing themselves.

A Prince George's police spokesman said last week that a Sheriff's Office SWAT team and county police narcotics officers were operating under such a warrant when they broke down the door of Berwyn Heights Mayor Cheye Calvo, shooting and killing his black Labrador retrievers.

But a review of the warrant indicates that police neither sought nor received permission from Circuit Court Judge Albert W. Northrup to enter without knocking.

The rest of the story is here.

Dog-Killing Cops Unremorseful

I've been around thousands of dogs.  I have seen exactly zero vicious black labs.  But some bad-ass members of a SWAT team, after raiding the wrong house, murdered two of them.

One dog was so vicious that it ran away from police.  So a bad-ass cop shot that dog in the back.

Incidentally, the prosecutors and cops don't care that two innocent dogs were murdered.  Prince George's State's Attorney Glenn F. Ivey said: "From my perspective, the key part is figuring out where the drugs came from and who should be held accountable for that." 

Why police officers raided the wrong house and killed two dogs that posed no harm to anyone just isn't a concern.

Hey, it's the War on Drugs.  Marijuana was involved.  Shit happens.  If you want a drug-free omellete, you gotta break some skulls.

Scalia's New Police Professionals

In Hudson v. Michigan, Justice Scalia argued that the exclusionary rule was unnecessary because of "[a]nother development over the past half-century that deters civil-rights violations," namely, "the increasing professionalism of police forces, including a new emphasis on internal police discipline."  In the past couple of days, we have the following examples of the "new police professionalism"

• A hernia post-op patient was thrown into jail and denied his pain medication;
• A Knoxville police officer threw away evidence in a criminal case in exchange for oral sex;
• The lead investigator in the Duke lacrosse case not only framed the Duke students, he also regularly intimidates defense witnesses.

If this is what Scalia considers to be professional, then what does he consider unprofessional?

Hudson v. Michigan: Fourth Amendment Vanishing Act

The Supreme Court's most recent retreat from the Fourth Amendment comes with a more than usual dollop of hypocrisy. The fruits of an unreasonable search should not be suppressed, the cost in terms of unpunished crime is too great. Besides, the person whose rights have been violated can always bring a civil action. Did Scalia giggle when he wrote that swill?

Let's consider the intersection of criminal and civil law arising from the Fourth Amendment. The amendment prohibits unreasonable searches and seizures. The knock and announce rule has long been part of the law, and a failure to knock and announce police presence is as a matter of law unreasonable.

So the police come to a man's home. They don't knock; they don't announce. They burst in and seize contraband. In the criminal case, the defendant files a motion to suppress. Denied, the court rules, relying on Hudson v. Michigan. The defendant is convicted, a big fat scarlet F painted on his forehead to designate his new status as felon.

He now brings the civil action arising under 42 U.S.C. Section 1983. The police defendants make a run at summary judgment. Under the second prong of Harlow v. Fitzgerald might reasonable police officers now disagree about whether it is required to knock and announce? A court might rule that mere cops should be required to know the distinctions between civil and criminal remedies. Would Scalia and company uphold a grant of qualified immunity?

Suppose the case makes it to a jury. The plaintiff takes the stand. Here's the cross examination by the police defendants' lawyer:

Q. Are you the same Joe Blow convicted of a felony as a result of the evidence seized in this search?

A. Yes.

Q. And you were sentenced to how long in prison for that crime?

A. Five years.

Q. I suppose you want the jury to award lost wages for your time away.

Perhaps the jury returns a verdict of $1 in nominal damages. The plaintiff's lawyer then requests attorney fees under 42 U.S.C. Section 1988. The court gives one dollar in lawyer fees -- as happened to me once, see McCardle v. Haddad (2d Cir.). Why so little? The plaintiff was not more than minimally successful. Farrar v. Hobby.

The Fourth Amendment is evaporating before our very eyes. Where once the Court in cases such as In re Winship concluded that it was far better that ten guilty men go free than one innocent man be convicted, today the Court reasons from a position of fear: Let's not get hung up on technicalities in the war on crime and terror, seems to the new ethos.

"The government demands strict application of the law to the people, but lenient application of the law to itself."

Tim Lynch has an interesting post about Hudson v. Michigan here.

Hudson v. Michigan

Absent extreme circumstances, the Fourth Amendment prevents police officers from kicking down a citizen's door when executing a search warrant.  The police are required to knock on the door, announced their presence, and wait from 20-30 seconds before kicking down a citizen's door.  This is the so-called "knock and announce" rule. 

The Fourth Amendment mandates that evidence obtained through unconstitutional searches be suppressed.  If the police would have found the evidence anyway, i.e., they would have found the evidence even if they hadn't violated the citizen's Fourth Amendment rights, then courts will not suppress evidence obtained unconstitutionally. This is the inevitable discovery doctrine. 

This Term, the Supreme Court will answer this question: How do we reconcile the inevitable discovery doctrine with the knock and announce rule.  More formally, the Court will answer: "Does the inevitable discovery doctrine create a per se exception to the exclusionary rule for evidence seized after a Fourth Amendment 'knock and announce' violation ... or is evidence subject to suppression after such violations...?"

The Cato Institute has filed, as they usually do in important civil rights cases, an extremely interesting amicus brief. For the first time I can remember, I disagree with Cato's position in a criminal case, and I support the government's position.

I'll note initially that I don't care for the exclusionary rule.  If anything, the exclusionary rule has made police officers more lawless. Before the exclusionary rule, police officers unconstitutionally searched and seized evidence, and they truthfully told the judge how they obtained the evidence.  After the exclusionary rule, police began perjuring themselves, since they viewed the exclusionary rule as a mere technicality.  In other words, same result (evidence is admitted), different process (the police lie).  See Morgan Cloud, The Dirty Little Secret ("Police perjury is the dirty little secret of our criminal justice system. It is 'dirty' in the way that any lie under oath is dishonest, unfair, and unethical. But it is a uniquely corrupt lie, because it is offered by government officials who are sworn to enforce and uphold the law.")

Lying degenerates a person's soul.  It throws off one's moral compass.  The more a person lies, the easier it becomes to lie, until the person no longer knows deceit from truth, moral from immoral.  Many (not most, but many) police officers, because of the exclusionary rule and the way it encourages police perjury, are utterly debased.  In a perfect, or even good world, prosecutors would prosecute police for perjury.  But we don't live in a good world.  Indeed, when one assistant district attorney suggested to a supervisor that he thought a police officer had perjured himself, he was demoted.  Garcetti et al. punish A.D.A for seeking justice. Because I think the exclusionary rule has caused more harm than good, it's not hard to persuade me that it should not apply in Hudson. 

Cato's position is that the police would have no incentive to follow the knock-and-announce rule if they know any evidence obtained through a breach would not be excluded.  Yet if the police have a warrant to search someone's home, they're going to discover whatever illegal evidence is in the home, unless the suspect first hears them coming and destroys the evidence.  Moreover, a person can file a section 1983 action against the police for violating their rights by not knocking and announcing.  Fear of civil liability should provide enough of a deterrent to police misconduct.  Failure to knock and announce is actionable under section 1983.

I don't know how this case will be decided.  But it will be well argued.  David Moran of Wayne State is representing the individual rights side of the case.  Mr. Moran is, by all reports, knowledgeable, talented, and gracious.  Good luck.

By the way, feel free to persuade me that my views on the exclusionary rule are wrong.  I'm open-minded, so do leave a comment.