Tuesday, January 20, 2009

Herring, civil liability, and Texas' exclusionary rule

Smart folks are still trying to work out whether the Herring case decided last week by the US Supreme Court narrowing the exclusionary rule is a big deal or a little one, and several good blog posts by attorneys have helped me think about the issue more concretely.

Kent Scheidegger even thinks "Herring may be setting the stage for the Holy Grail -- overruling Mapp v. Ohio," which extended the federal exclusionary rule to state courts. (That would be his "Holy Grail," btw, not mine.) He says that after Herring, arguably, "a defendant seeking to suppress evidence [must] establish not only that a Fourth Amendment violation occurred and no categorical exception applies, but also that there was ... 'deliberate, reckless, or grossly negligent conduct'." That would limit exclusion to an incredibly narrow class of cases.

Outside of federal court, for Texans, at least, the impact is much less profound. Robert Guest points out that Texas relies on our own state statutory exclusionary rule, not one created by federal courts.

So when you hear complaints that the exclusionary rule amounts to judges "legislating from the bench," that's a reference to the federal debate. In Texas, legislators crafted the rule back in 1925. The current version reads:
Art. 38.23. EVIDENCE NOT TO BE USED. (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.... (b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.
Guest points out that the Texas Court of Criminal Appeals in 1999 already created the same loophole in Texas' exclusionary rule as SCOTUS just created in federal Fourth Amendment doctrine.

Tom Goldstein had expressed concern that Herring, for the first time, "extended the good faith exception to ordinary police conduct" (though Orin Kerr disagrees). Whatever the case, though, Texas' statute already has a "good faith" exception written into it that the CCA ruled allows evidence admitted from an arrest based on a recalled warrant - the identical circumstance that SCOTUS addressed in Herring.

So while the ruling will limit evidence exclusion in federal cases, for state cases, which involve the vast majority of police searches, the "new" extension of a good faith exception to police is mostly redundant - the Court of Criminal Appeals already went there years ago.

Herring also brought out more traditional, debates over whether the exclusionary rule is a viable public policy approach, regardless of whether it's created by the Legislature (as in Texas) or the federal courts. The National Review's Jonah Goldberg argued that "I don’t see why cops who break the rules intentionally or unintentionally should be punished by having objectively guilty criminals let loose on society."

To this, Instapundit Glenn Reynolds replied with a comment that almost precisely reflects my own view:

These are good arguments and I’d be happy to scrap the exclusionary rule and return to the framing-era approach that put the constable at risk for personal liability whenever there was an unreasonable search or arrest, unless he had a warrant, in which case the magistrate who issued the warrant might be at risk if the warrant was improperly issued. But modern doctrines of official immunity — which are basically judge-made, and a result of “judicial activism” of the first order — make that impossible. There’s no constitutional basis for immunity on the part of police or their supervisors; it’s just something judges think is a good idea. Nonetheless, it’s not going anywhere — as part of my efforts to get something done about no-knock raids, I was recently told that, even in the Democratic Congress, it’s not going to be possible to do anything about official immunity.

Meanwhile, if you reward negligence, by letting cops who are negligent arrest people they’d otherwise be unable to, the cops — and, more importantly, their superiors, who might otherwise look bad if a guilty person is allowed to go free — wind up incentivized to be negligent. That increases the risk that innocent people will be subjected to unreasonable searches. In this imperfect world, the exclusionary rule is pretty much all we’ve got. But hey, if Jonah wants to join me in a campaign to get official immunity abolished or cut back, I’m ready.
If the alternative is a constitutionally originalist approach that eliminates judicial-invented immunity for police and prosecutors, I'd gladly agree there'd be little need for an overt exclusionary rule. Such matters could be handled in the civil courts, as the founders intended. Short of that, however, eliminating the exclusionary rule would remove the only significant institutional check on certain types of official misconduct without creating a viable alternative to prevent abuse.


Anonymous said...

Good post but if you are going to fine the person responsible for the error you have to be able to identify that person. In the Harrison case an anonymous person failed to remove the withdrawn warrant from the database. Do you fine the police chief or the sheriff in such cases?

Gritsforbreakfast said...

Thanks JSN. In civil court you get discovery, so I don't see that as a big problem. The person who made the error wouldn't remain anonymous for long, and routine fact finding processes should be adequate to establish such facts if official immunity didn't prevent plaintiffs from getting into court in the first place.

Anonymous said...

"Do you fine the police chief or the sheriff in such cases?"

I believe "deliberate indifference" is involved in a lot of the cases since most agencies with authorization to enter warrants, stolen property, etc into TLETS/NLETS do not have written policies and procedures concerning validation and removal of enries.

As a former communications supervisor, I can assure it would not be a problem determining who or what caused someone to be falsely arrested because of failing to remove an entry.

Anonymous said...

How to keep data "clean" is a modern question created by modern technology.

We must find a way to make sure all the government workers keep their data clean.

Financial incentives will work better than an exclusionary rule that only addresses a very small part of the problem.

123txpublicdefender123 said...

Government actors shouldn't be able to buy their way out of following the Constitution. They shouldn't be able to say to themselves, "If I illegally search this homeless person, he will never find an attorney who will sue me for it, so I'm just going to do it, and see what I can find." There has to be a disincentive that goes directly against their incentive, not one that might indirectly affect them years later if the person manages to find an attorney who takes the case, files the suit, gets it to a jury, and gets a jury to care.

I am so tired of the argument that "a guilty person shouldn't go free because the cops intentionally or recklessly violated the constitution." Look. There's nothing in the exclusionary rule that says that the cop violating the Constitution means the guilty person goes free. The exclusionary rule just says that the government can't use the evidence they found by violating the Constitution. In other words, it puts the government exactly where they would have been if they had never violated the Constitution at all. It's the most efficient and effective deterrent to law enforcement misconduct, and anyone who thinks otherwise is not and has never paid attention to what really goes on.

Rage Judicata said...

"Look. There's nothing in the exclusionary rule that says that the cop violating the Constitution means the guilty person goes free."

While this is true (it's specifically mentioned in ELkins as being a false argument), I was interested to read the quote from Elkins again today in light of Obama's speech:


The criminal goes free if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the character of its own existence . . .


but because We the People have remained faithful to the ideals of our forbearers, and true to our founding documents...

...As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake.

Anonymous said...

Except that the Founders didn't write or even contemplate the exlusionary rule--it was made up by judges. So that's what you get when you make it up as you go along. The court giveth and the court taketh away.

Gritsforbreakfast said...

You misread my post, 7:04, or perhaps just read into it what you liked. A) I said the founders used CIVIL liability, not the exclusionary rule, to prevent police misconduct. And B) Texas has a STATUTORY exclusionary rule, not one created by judges.

That said, Orin Kerr would argue that the exclusionary rule follows logically from practices the founders DID endorse about returning seized property gathered in violation of the Fourth Amendment. See his contention here.

Anonymous said...

Excellent post. Grits, did you see Randy Barnett's post at Volokh on this issue and his take on the Goldberg/Reynolds debate?

Gritsforbreakfast said...

Hadn't seen it, Texpat, I'll go take a look.

Gritsforbreakfast said...

Texpat, I'm not sure I agree with the "administrative" regimen Barnett suggests, though I only read his post, not his original academic paper.

My main beef offhand is I see no need to reinvent the wheel by creating some new "court of claims." The problem as I see it isn't that traditional civil liability doesn't work, it's that official immunity has stripped it away in an era over-obsessed with "tort reform."

In any case, I'd want to see some alternative established BEFORE they get rid of the exclusionary rule, but the law enforcement types want to just end it while providing no alternative. Barnett clearly recognizes that accountability gap and I agree with him that it's possible, but not proven, that "compensatory remedy would deter more effectively than exclusion of incriminating evidence."

Barnett's a sharp guy. I heard him speak awhile back at a Federalist Society event in Austin where he basically bashed Antonin Scalia from the right for a tepid commitment to originalism!

Anonymous said...

Again, jack ass, it's not written down--it's not in the text of the constitution--therefore, originalism is out the window. 9 judges get to decide what "logically follows" and discuss penumbras eminating and all that other evolving standards feel good gobbledy-gook. That's how you go from Weeks, to Wolf back to Mapp. That's why the exclusionary rule didn't stop with 4th amendment violations and moved on to include alleged 5th, 6th, and 14th amendment violations too. Round, and round and round we go.....
My point is that you can't complain about judicially created loopholes since it was judicially prestidigitated in the first place.

Anonymous said...

Nonattorneys may find it strange that I, a prosecutor, agree with 123txpublicdefender123, but there it is. The only thing you get by subjecting police and prosecutors to individual civil liability is...no one dumb enough to want to be a police officer or prosecutor. ("You're going to pay me how much AND people can sue me?!?!?") However, I haven't seen anyone point out as part of your discussion, Grits (and I may have just missed it), that the Supremes' narrowing of the exclusionary rule actually makes a great deal of sense in light of its PURPOSE. In the criminal law itself, we generally believe people should only be accountable for conduct they can HELP doing or not doing. (This is why the arguments about the mentally ill are so vehement: even those of us with extensive experience have difficulty discerning what behavior is caused by the illness and what behavior is chosen by the person, and whether the person's choices can even be considered valid if made while ill.) The purpose of the exclusionary rule is to ensure that police consciously make every available effort to protect the rights of the accused in the collection of evidence. If an officer did not make that effort, evidence out, and good cops and good prosecutors can live with that without much difficulty. But it is possible (with my tongue in my cheek on the mildness of the word "possible") to do things as well as you can possibly do them, with no malicious intent at all, while following through reasonably on every required duty, and still make an error that results in your obtaining evidence that could have or should have been better collected. Under those circumstances ("good faith"), what purpose would it serve to exclude the evidence? If I've actually acted in good faith, and was not negligent, and you still exclude the evidence, what would you have me learn from that exclusion that would modify my behavior to make it more constitutionally acceptable next time? Additionally, folks tend to look down on the system when someone gets off on a "technicality"; I'm not sure society is willing to allow the guilty to go free if the police acted in good faith, nor am I sure society has an interest in protecting the rights of the accused BEYOND the point where police and prosecutors have acted in good faith and reasonably with regard to their duties.

Gritsforbreakfast said...

8:55 - when you start your post with anonymous name calling, no one takes you seriously. You're just another loud mouthed coward. You also don't seem to understand that Texas has a STATUTORY exclusionary rule, not one that's judicially created.

Also, Orin Kerr is a recognized 4th Amendment scholar and expert. If you want to dispute his contention, be specific and debunk the actual historical analysis he's offered. Just calling me, him, or anybody a "jackass" says MUCH more about you than anyone you're criticizing.

To 9:06, given that analysis, what remedy should be available, for example, when harm befalls citizens because police negligently do not keep their databases up to snuff? If they were harmed by a corporation's negligence, they'd have a cause of action. What should be the remedy when they're harmed by government actors?

Anonymous said...

Mr. Pot calling Mr. Kettle: Maybe you just read into it what you liked.

Anonymous said...

Grits, one thing you don't point out is that the reason Texas has a statutory exclusionary rule is that the courts refused to create one from the state constitution.

Gritsforbreakfast said...

"Maybe you just read into it what you liked."

What am I supposed to "read into" an anonymous coward too scared to comment under his own name calling me a "jackass"?

And re: "the reason Texas has a statutory exclusionary rule is that the courts refused to create one from the state constitution."

This matters, because ...?

How does that observation do anything except rebut your earlier contention that the exclusionary rule is illegitimate because it "was judicially prestidigitated in the first place"?

There are other valid arguments critiquing the exclusionary rule, but when you're talking about Texas state courts, that's not one of them.

Anonymous said...

Dude, chill out. A wee bit too sensitive.

Gritsforbreakfast said...

"chill out. A wee bit too sensitive"

I allow anonymous comments on this blog because it's often frequented by government employees, like 9:06, who cannot use their names for fear of retaliation.

That doesn't mean, at all, that I must respect someone who hurls insults behind the veil of anonymity and is unable to engage in constructive debate.

"Coward" is precisely the word to describe such commenters, and you notice I'll put my name on that opinion and stand by it publicly.

If you want to call people names, show some cojones and stand behind what you say.

Anonymous said...

I apologize for calling you a jack ass when in fact it is I who is/am the jack ass. I should have referred specifically to your comments, not you, and used less acerbic language, such as foolish.

Gritsforbreakfast said...

Apology accepted and no hard feelings.

My reaction was because I simply won't allow bullying on the blog. When it starts up, I have no problem giving as good as I get.

The "tough on crime" crowd often thinks they can intimidate people by labeling them "liberals," "soft on crime," etc., and on this blog I try to insist we move beyond those stale canards. I though Orin Kerr made a very strong argument and would be delighted to see an informed response that goes beyond name calling.