Hudson v. Michigan (2006) is one in a series of cases in which the Roberts Court has blessed police officers with extraordinary power. This power authorizes cops to engage in the kind of violent and undemocratic policing that make places like Ferguson and Baltimore look less like American cities and more like the outposts of some totalitarian regime.
The scandal, it turns out, is not bad-apple cops. The scandal is that the conservative justices on the Roberts Court have provided the legal framework for black lives not to matter to the police.
The Constitution be damned: This was apparently the perspective of a Detroit police officer named Jamal Good, who admitted that he routinely violated the long-standing requirement that police “knock and announce” their presence before entering a home. Good found that the Fourth Amendment—with its pesky insistence that searches be reasonable—limited his ability to obtain evidence, so he simply ignored it.
Usually, the Supreme Court decides whether there has been a violation of the Constitution. In Hudson, the Court faced a different question: When a cop admits that he has broken the rules, should there be any meaningful sanction? The issue was whether the classic remedy for Fourth Amendment violations—the “exclusionary rule,” which renders evidence collected through unconstitutional means inadmissible in criminal court—applies to the knock-and-announce rule. In a 5–4 decision, the Court held that it does not.
This holding is an affront to the concept of living in a civilized society. The idea that the police may not barge into a home without some warning has ancient roots. The knock-and-announce requirement has necessary exceptions, including when the police might endanger themselves or risk the destruction of evidence by announcing their presence. But the Court had said, just 11 years before Hudson, that knock-and-announce is a “basic principle” of Fourth Amendment jurisprudence.
To be sure, Hudson does not officially strike down the rule. The Court simply rendered it toothless by assuring the police that there will not be any major sanction if they do not comply with it.
One might think this was bad enough. But frequently in criminal-procedure cases, the conservatives go maximalist, not minimalist. Thus Justice Antonin Scalia, writing for the majority, took the opportunity to mount a full-on assault on the exclusionary rule itself.
This was not the surly and bombastic Scalia of recent term; this was the reasonable-sounding and earnest Scalia, who can be very persuasive. It is not until you read Justice Stephen Breyer’s dissent that you realize Scalia’s opinion is made up of elegant lies.
The first lie is about whether the police have any meaningful incentive to follow the knock-and-announce requirement after Hudson. Scalia “assumes” that they do, because they can still be sued. In other words, the person whose home Good illegally entered should obtain a lawyer, who can persuade a jury to award damages.