Gangsters in Blue

Last March, a woman in Albany, New York filed a lawsuit against the city police department after being subjected to a humiliating public search in which an officer inserted two fingers into her vagina. The police had no probable cause for the search, and they found no drugs on the woman. After her case went public, others came forward with similar stories. The case also exposed big problems with the city’s Civilian Review Board. Contrary to city law, the city’s police apparently believe cooperating with the board’s investigations is optional, and have intimidated people–including the woman above–who file complaints from taking those complaints to the board.

It now also appears that the city’s sheriff’s department has engaged in a routine of racial profiling, harassment, and illegal searches going back 20 years at Albany’s main bus terminal. The department is facing a lawsuit from a man named Tunde Clement, who it should probably be noted does have a long history of drug offenses. But in this particular case, Clement was clean. Sheriff’s deputies confronted Clement as he was departing a bus, took him to the men’s bathroom, and searched him. When they found no drugs, they arrested him for “resisting arrest,” a charge that was later thrown out, given that you can’t arrest someone for “resisting arrest” if they haven’t committed a crime that should have resulted in arrest in the first place.

The police then strip-searched Clement, and made him squat in front of them. The claimed to have seen white powder on his anus So they took him to a hospital. Without his consent, they then administered drugs to sedate him, induced him to vomit, put a camera up his rectum, and took x-rays of him. Such drastic measures against the consent of a patient usually require officials to show some sort of imminent emergency. There was no such emergency with Clement. And still, no drugs. The hospital later sent Clement a bill for $6,800, and diagnosed him as having “hemorrhoids.”

The Sheriff’s Department’s Drug Interdiction Unit was already under scrutiny. It’s also facing a lawsuit from another officer whose thumb was shot off during a botched drug raid. An internal affairs investigation found that the drug unit was mismanaged and poorly supervised, and recommended discipline against the unit and its leader, Inspector John Burke.

No such action was ever taken.

If you’ll remember, Justice Scalia argued in Hudson v. Michigan that the Exclusionary Rule isn’t necessary in the case of illegal no-knock raids because there are less drastic, more effective ways of deterring police officers from conducting illegal searches. The ruling was of course confined to the issue of wrongful no-knock searches, but it’s no secret that Scalia and other Federalist Society types want to do away with the Exclusionary Rule altogether. These other methods of deterring police from conducting illegal searches, Scalia argued, include a vague “new professionalism” in police departments across the country (which, the scholar Scalia improperly quoted has explained, is due to the fact that police have been held accountable when they do conduct illegal searches by the exclusion of evidence), civil rights suits from people who have been wrongly searched, and internal disciplinary procedures against offending officers.

Scalia’s first reason is debatable at best. And as we’ve seen, his other two remedies rarely happen, in part thanks to rulings from judges like Scalia, who have made it increasingly difficult to sue an agent of the government.

Here’s the latest piece of evidence against Scalia’s argument that police are usually disciplined by their own departments for conducting illegal searches:

But a closer look at those prosecutions reveals something that has not been trumpeted: more than 20 cases in which judges found police officers’ testimony to be unreliable, inconsistent, twisting the truth, or just plain false. The judges’ language was often withering: “patently incredible,” “riddled with exaggerations,” “unworthy of belief.”

The outrage usually stopped there. With few exceptions, judges did not ask prosecutors to determine whether the officers had broken the law, and prosecutors did not notify police authorities about the judges’ findings. The Police Department said it did not monitor the rulings and was aware of only one of them; after it learned about the cases recently from a reporter, a spokesman said the department would decide whether further review was needed.

Though the number of cases is small, the lack of consequences for officers may seem surprising, given that a city commission on police corruption in the 1990s pinpointed tainted testimony as a problem so pervasive that the police even had a word for it: “testilying.”

And these cases may fuel another longtime concern that flared up again in recent days: suspicions that the police routinely subject people to unjustified searches, frisks or stops.

[...]

Federal judges rarely suppress evidence, Judge Martin said, and the unusual number of suppressions in New York City gun cases raises questions about whether such tactics may be common. “We don’t have the statistics for all the people who are hassled, no gun is found, and they never get into the system,” he said.

The point here is not that a small number of police officers were caught conducting illegal searches. The point is that they weren’t in any way held accountable for conducting them, even after called out in court by a judge. Those internal disciplinary procedures aren’t merely not working very well, they’re practically nonexistent.

I see plenty to like in this bill.

It would force states that receive federal crime fighting money to keep better track of statistics regarding deaths in police custody.

A similar bill was signed into law by President Clinton in the 1990s that required states to keep track of police shootings, but lacked any enforcement mechanism. So most of the states just ignored it.

The problem, of course, is that while police departments and state governments are excellent at reporting the number of police officers killed on the job every year, they’re pretty lousy at keeping track of the number of people who die at the hands of the police, justified and otherwise.

Same goes for botched raids. In the past, pro-SWAT groups have criticized me for relying on newspaper accounts and federal lawsuit filings to try to document and count the number of mistaken raids over the years. Thing is, that’s really the only way to document them. I’d love to rely on police records for that data. But in most of the country, they don’t exist. One of my main recommendations in Overkill was that every search warrant be tracked in a searchable database, from the time it’s requested through its execution. Records should include what police thought they’d find, what they actually found, what happened to the suspect, and what tactics were used to serve the warrant. They should also probably include some sort of code identifying any informants used, though that could be redacted if the other information were to be made public (and I think the entire database should be subject to FOIA requests). And of course, if a warrant is served on the wrong house, that should be documented.

I don’t see any federalism problems with these requirements, either. If state and local governments are doing an inadequate job protecting the civil rights of their citizens, the federal government is obligated to intervene under the Fourteenth Amendment.