‘How the Supreme Court Protects Bad Cops’

Writing at The New York Times, Erwin Chemerinsky of the
University of California, Irvine, School of Law,
takes aim at the U.S. Supreme Court for its key role for making
it “very difficult, and often impossible, to hold police officers
and the governments that employ them accountable for civil rights
violations. This undermines the ability to deter illegal police
behavior,” he added, “and leaves victims without compensation.”

As evidence of this sorry state of affairs, Chemerinsky points
to the Supreme Court’s unanimous 2014 opinion in Plumhoff v.
Rickard, in which the justices
granted qualified immunity to several police officers who used
lethal force to stop a high-speed car chase. That chase began with
a routine traffic stop for a busted headlight and ended roughly 10
minutes later with the officers firing 15 rounds into the vehicle,
killing both the driver and his passenger, neither of whom were
armed. According to the Court’s decision, this deadly use of force
was fully permissible. “If police officers are justified in firing
at a suspect in order to end a severe threat to public safety,” the
Court held, “the officers need not stop shooting until the threat
has ended.”

Chemerinsky describes this ruling as “deeply disturbing”:

The Supreme Court now has said that whenever there is a
high-speed chase that could injure others — and that would seem to
be true of virtually all high-speed chases — the police can shoot
at the vehicle and keep shooting until the chase ends. Obvious
alternatives could include shooting out the car’s tires, or even
taking the license plate number and tracking the driver down
later.

He’s right. The justices revealed little interest in calling
aggressive police tactics into question in that case.

To my surprise, however, Chemerinsky failed to mention one of
the starkest recent examples of bad cops enjoying a legal victory:
the Supreme Court’s 2006 ruling in
Hudson v. Michigan. In that case, a divided Court
ruled that evidence obtained by the police after “a concededly
illegal” no-knock raid was still admissible in court. “Resort to
the massive remedy of suppressing evidence of guilt is
unjustified,” declared the majority opinion of Justice Antonin
Scalia. Furthermore, Scalia added, the “increasing professionalism
of police forces” around the country is itself a strong internal
check on law enforcement that “deters civil-rights violations.”

To say the least, Scalia’s words have not aged well. As my
former Reason colleague Radley Balko has observed,
“a scan of recent headlines suggests that when it comes to holding
police accountable for botched raids, excessive force, and
misconduct, Scalia’s ‘new professionalism’ is nowhere to be
found.”