« Does a Hooter’s Outfit Make the Burgers Tastier? | Main | Burlington Northern & Santa Fe Railway Co. v. White »
And whatever you do, don’t actually read my citations within their original context
I’ve always said that as much as one can have a favorite Supreme Court Justice, Scalia’s mine. Sure, I disagree with about 98% of his opinions and judgments. But I find his decisions to generally be very well reasoned with a clear logical flow, so I can at least understand how he gets to his outcome, though I probably don’t agree with it (unfortunately, not all the justices are nearly as clear in their written reasoning). Plus, he seems to have a good sense of humor, which I always appreciate - I saw him judging a moot court competition a while back and found him to be wildly entertaining throughout the proceeding. All of which is to say, this story saddens me just a tad, since it goes against the main reason I just gave for liking Scalia.
As we discussed here previously, last Thursday the Supremes issued an opinion in Hudson v. Michigan. In a majority opinion written by Scalia, the Court whittled down the “knock and announce” requirement of the Fourth Amendment, ruling that a violation of the Constitutional requirement does not necessitate suppressing the subsequent evidence. In working his way up to this ruling, Scalia argued, among other things, that civil rights violations by the police have decreased over the last 50-odd years thanks to increased internal discipline and a more professional police force. In support of this statement he cited a 1993 book, written by Professor Sam Walker, which noted the “wide-ranging reforms in the education, training, and supervision of police officers.” One would expect that Professor Walker would be pretty psyched about being cited in a Supreme Court opinion, right?
Well, not so much.
See, Radley Balko over at The Agitator tracked down Professor Walker to discuss his Supreme citation. Turns out, he’s a bit pissed because “Scalia turned my research completely on its head.” When Walker made his statement, he was talking about the fact that the reforms happened because of judicial oversight of the police, particularly by the Warren Court, and “Scalia now wants to take that oversight away.” Walker notes that Scalia also ignores the fact that Walker’s focus was on regular police work, which differs from drug policing. And, as The Agitator points out, Walker’s research is already sixteen years old. So, uhm, way to go Scalia.
When asked for a formal response regarding his misuse of Professor Walker’s quotation, Justice Scalia sent QuizLaw the following love letter:
Comments
This is more than a nitpick. The "Knock and Announce" of which you speak is not a requirement of the Fourth Amendment; it is a requirement of a judicial interpretation of the Fourth Amendment. As such, it lies within the perview of the Court to decide that previous precedent is incorrect and a properly constituted warrant does not require advance notice to the owner of the property.
The gist of the decision is that it's not up to the courts to decide if the police have to wait 10 seconds, 2 seconds, or any other length of time when serving a warrant. This is a decision best left to the judgement of the police officers on the scene.
Author's Note: Well, to be fair, it is kind of a nitpick. When the courts read a provision of the Constitution as requiring certain standards, acts, etc., it's entirely customary and reasonable to refer to those as Constitutional requirements. This is because the courts have ruled that the Constitutional provision in question requires these standards, act, etc. In fact, the courts themselves frequently refer to such judicial interpretations as Constitutional requirements.
Do the courts have the ability/right to later fiddle with those requirements? I never said otherwise. And in fact, last week's Supreme Court decision didn't say that there's no longer any "knock and announce" requirement, it simply weakened the ramifications of a violation of this requirement and, as you say, left discretion with the cops in exercising the requirement.
Posted by Dan | June 22, 2006 1:26 PM
widdled = whittled?
I enjoy reading these posts but sometimes wonder whether you have a production editor. Or want one. And yes, I'm volunteering.
Author's Note: Yeah, I meant "whittled," and it's been corrected. And yes, some mistakes get past our editors, but it happens to the best of us.
Posted by The Grammar Police | June 22, 2006 2:24 PM