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.