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Orin Kerr and the Davis Case

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Tony Mauro has this story in the NLJ on their choice for Appellate Lawyer of the Week, GW Law Prof. and Volokh Conspirator Orin Kerr.

The article focuses on Davis v. United States.  This upcoming Supreme Court case asks whether there is a good-faith exception to the exclusionary rule when a search is authorized by precedent at the time of the search but that precedent is later overruled.

CJLF disagrees with Professor Kerr in this case, and our brief supporting the government is due Feb. 18.  The case will be argued March 21.

I'm glad to see this article accessible to the public.  So much of Mauro's work is behind the paywall these days we don't get to link to much of it on the blog.

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And even if the Court does rule, the government would always win – either on the merits, if the search was legal, or if illegal, because of the good-faith exception to the exclusionary rule. 'The good faith exception would deny the Court the power to redress the defendant's injury, eliminating Article III standing to adjudicate the merits,' Kerr asserted in the brief."

Isn't this too clever by a half? From what I can recall from Crim Pro, the exclusionary rule is a Court-made remedy to deter illegal conduct by the police because, as a practical matter, generally speaking, there is no way for a criminal defendant to vindicate his Fourth Amendment rights by other means (e.g., civil suits). But the Court has stated that where an exclusion would not serve the deterrent function, the evidence should not be excluded. So, it seems to me, that where police (who aren't judges) follow precedent allowing a search, there's no deterrent function served by excluding the evidence because cops engaged in the enterprise of combating crime will conduct themselves in a manner allowed by the judiciary.

I think the whole retroactivity thing is a red herring too. At the end of the day, the issue is the police conduct and whether it was the type of conduct that needs to be deterred. Police conduct that relies on precedent isn't the conduct that needs to be deterred, hence, no exclusion.

Tony Mauro's puff piece on Orin is to be expected. I know Orin slightly, and his reputation as center-right is overblown. He is to legal conservatism what David Brooks is to conservatism in general, to wit, the "conservative" liberals most eagerly embrace.

Orin is in error in this case and is going to lose it, the cheerleading by the Left notwithstanding. As federalist points out, the Court has made clear that suppression is a costly remedy, because it deprives the process of the truth. Suppression is therefore to be confined to those instances in which it is "most efficacious" and, in particular, where it has a demonstrable deterrent effect.

Here, it has no deterrent effect whatever, unless we can count on the police to be clairvoyant.

Orin's reliance on a standing argument is unavailing. The defendant plainly has standing because he is the aggrieved party and has a stake in the outcome of the case. The fact that the defendant will not benefit from a subsequent change in law (1) does not affect the ingredients traditionally understood to confer standing, and (2) is not a bit different schematically from other good faith exception cases in which the government has prevailed. In those cases, it was not that the defendant didn't have, or was found not to have, standing; it was simply that the subsequent legal determination favorable to him was found insufficent to provide the deterrent that alone justifies the costly remedy of suppression.

This is not really all that hard; the business about standing is a mirage, as is the related argument about how a ruling in favor of the government will "limit the courts." As the SCOTUS has uniformly recognized in its earlier good faith exception cases, since the suppression remedy is court-created, the limits on it are also court-created. The difference that Orin and Mauro miss (or elide) is the difference between supposedly establishing a hide-bound doctrine, and discretion in applying an existing doctrine (that being deterrence as the primary if not the sole rationale of suppression).

As I say, a puff piece in the mainstream media about a "conservative" sticking up for the Left is par for the course. But don't be fooled about how this case is actually going to be decided.

Well, I suppose in a sense you could say that the whole genre of "[whatever] of the year/month/week" articles are inherently "puff pieces." After all, you are not going to select someone and then bash him. Even so, I thought it was an interesting article.

Kerr is in, fact, reasonably moderate in his views, even if not fairly classified as "conservative." Measured against the median law professor, he would be decidedly conservative. In San Francisco, he would probably be called a fascist.

On Davis, Mauro summarizes what Kerr is arguing. This kind of article isn't supposed to be a critical analysis.

I'm working on that. Stay tuned.

Kent,

How many puff pieces has the NLJ done on you? How many did it do on Michael Mukasey? On Ted Olson (before Ted supported the anti-Prop 8 side)? On John Roberts? On anyone who actively supports the death penalty?

Mainstream media puff pieces are reserved for (1) down-the-line liberals or (2) quasi-conservatives in those instances when they take liberal positions. That is the entire puff piece universe. The press knows exactly what it's doing.

"Kerr is in, fact, reasonably moderate in his views, even if not fairly classified as 'conservative.' Measured against the median law professor, he would be decidedly conservative. In San Francisco, he would probably be called a fascist."

That's for sure. On the other hand, it speaks more to the center of gravity of law faculties than to Orin's view of the world.

The reason Mauro isn't doing a "critical analysis" is that any such analysis would show the pro-criminal side holds a losing hand in this case, for the reasons federalist and I have outlined. I have no doubt CJLF did yet a better job of outlining them in its brief.

Orin is a plenty nice fellow and, as you say, a balanced and fertile intellect. But he should be taking the other side of this case.

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