Without exclusionary rule, negligent police are just 'wild and crazy guys'

I'd expressed concern that the new SCOTUS precedent from the Herring case decided this week - which says that the exclusionary rule does not apply to negligent errors by the police - will make the problem of rights violations based on database errors even harder to solve. TChris at TalkLeft agreed, declaring "The Supreme Court's decision gives the police little incentive to keep their databases up to date and thus encourages wrongful arrests."

But the discussion from news reports and the legal blogosphere makes me think the implications of Herring are a lot broader than that. Tom Goldstein at SCOTUSBlog predicts that "we will at some point soon regard today’s Herring decision as one of the most important rulings in that field in the last quarter century." That's because:

The opinion has nothing to do with the fact that the error here is one of recordkeeping. It applies fully to negligence by police officers in their day-to-day determination whether there is probable cause to conduct a search. If the officer makes an objectively reasonable mistake - i.e., he is merely negligent - the exclusionary rule does not apply to whatever evidence he finds. Put another way, the Supreme Court today extended the good faith exception to ordinary police conduct. ...

Previously, the Court had applied the good faith exception only to non-police conduct.

In the dissent, Justice Ginsburg said the ruling violates a "foundational premise of tort law":

The exclusionary rule, the Court suggests, is capable of only marginal deterrence when the misconduct at issue is merely careless, not intentional or reckless. The suggestion runs counter to a foundational premise of tort law—that liability for negligence, i.e., lack of due care, creates an incentive to act with greater care.

One wonders whether the majority's idea that liability doesn't deter negligence will wind its way into SCOTUS' civil rulings on non-law enforcement topics - it's a pretty radical revision of a fundamental legal principle. But as troublesome as that sounds, Goldstein says Ginsburg actually understates the significance of the ruling:

the dissenters do not seem to be alarmed at all by what I understand to be a very significant move in Fourth Amendment jurisprudence. They address the case as if it merely involves police recordkeeping, when the Court’s ruling is in fact far broader. According to today’s decision, the overwhelming majority of cases involving the ordinary application of the exclusionary rule - many thousands of cases - have potentially omitted an essential component of the constitutional inquiry (the officer’s objective negligence) and a great many of those cases have been wrongly decided because the officer acted wrongly but was not reckless.

Scott Greenfield calls negligence the "new loophole" in the Fourth Amendment, while an Indiana University law prof quoted in the New York Times agreed the the ruling has broader implications, declaring, “'It may well be ... that courts will take this as a green light to ignore police negligence all over the place.'” At Lawyers Guns and Money, Scott Lemieux also predicts the ruling will be applied broadly:

while I'm not without a certain sympathy for the idea that it's appropriate to balance the effects of applying the rule based on the effects on a particular case, the fact that the Court permitted an exception in a run-of-the-mill drug possession and gun case as opposed to a serious violent crime makes clear that the cost-benefit analysis will be done with a 2-ton anvil on the state's side. There's no serious weighing of costs and benefits being done here at all.

Doug Weathers, a lawyer-blogger out of Fort Worth, questions whether the ruling promotes negligent policing:

The Supreme Court majority apparently believed that this situation called for a new extension of the good faith exception to include that negligent errors by the police generally do not trigger the exclusionary rule. The Court made much of the "innocent" conduct of the police, however, does this new exception deter police from wrongful conduct to get at evidence or encourage? Rather than encourage professionalism and competence in law enforcement, the ruling today says do your job with negligence if need be because we the Supreme Court have your back. Better for the government to prevail in a single drug case than to protect citizens with a 4th Amendment that punishes the police for their own negligence. The whole thing smells fishy to me.

Robert Guest thinks the search in Herring should have been voided even under the new majority ruling, reasonably asking, "If a recalled warrant is still in the system after 5 months, isn't that evidence of 'reckless disregard' or 'systemic error'?"

Without the exclusionary rule, one wonders what, if any, checks remain on negligent actions by police? Justice Ginsburg's dissent says there are none, because:

Civil liability will not lie for “the vast majority of [F]ourth [A]mendment violations—the frequent infringements motivated by commendable zeal, not condemnable malice.” .... Criminal prosecutions or administrative sanctions against the offending officers and injunctive relief against widespread violations are an even farther cry.

I'd have to agree that without "civil liability," "criminal prosecutions" or "administrative sanctions," I can't see a single, meaningful restraint remaining on negligent police conduct. If the exclusionary rule will not apply in such cases, what if any means are left to deter negligent behavior?

Given that SCOTUS just turned the exclusionary rule into a full-blown joke, Instapundit Glenn Reynolds offered an especially apropos analogy writing about the case in the New York Post:

COMEDIAN Steve Martin once explained how to make a million dollars without paying taxes. First, you make a million dollars. Then, you don't pay taxes. If the IRS finds out, you explain: "I forgot." Then, if that's not enough, you say, "Well, excuuuse me!"

Those negligent police officers are certainly wild and crazy guys!