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Ivory Tower Academics and Police Use of Force

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UC Irvine Law Dean Erwin Chemerinksy has this op-ed in the NYT, titled "How the Supreme Court Protects Bad Cops." 

Chemerinsky is upset about the doctrine of qualified immunity in civil suits against police officers for excessive force.  Okay.  Although I generally support it, at times I have had some qualms about some aspects and applications of that doctrine myself.  But just looks at what he says to support this argument.
In recent years, the [Supreme C]ourt has made it very difficult, and often impossible, to hold police officers and the governments that employ them accountable for civil rights violations. This undermines the ability to deter illegal police behavior and leaves victims without compensation. When the police kill or injure innocent people, the victims rarely have recourse.

The most recent court ruling that favored the police was Plumhoff v. Rickard, decided on May 27, which found that even egregious police conduct is not "excessive force" in violation of the Constitution. Police officers in West Memphis, Ark., pulled over a white Honda Accord because the car had only one operating headlight. Rather than comply with an officer's request to get out of the car, the driver made the unfortunate decision to speed away. The police chased the car for more than five minutes, reaching speeds of over 100 miles per hour. Eventually, officers fired 15 shots into the car, killing both the driver and a passenger.

The Supreme Court reversed the decision of the Court of Appeals for the Sixth Circuit and ruled unanimously in favor of the police. Justice Samuel A. Alito Jr. said that the driver's conduct posed a "grave public safety risk" and that the police were justified in shooting at the car to stop it. The court said it "stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended."

This is deeply disturbing. The Supreme Court now has said that whenever there is a high-speed chase that could injure others -- and that would seem to be true of virtually all high-speed chases -- the police can shoot at the vehicle and keep shooting until the chase ends. Obvious alternatives could include shooting out the car's tires, or even taking the license plate number and tracking the driver down later.

But the Court did not say that "egregious" police conduct is not excessive force.  Before even getting to the immunity issue, the Court looked at the specific case and the suspect's particular conduct, which is more aggravated than Chemerinsky bothers to tell the reader, and unanimously found that the police did not violate the Fourth Amendment.  There was no "civil rights violation" to be held accountable for.  There was no "illegal police behavior" to deter.  And Rickard was definitely not an innocent person.

Shooting out the tires is an "obvious" alternative?  Sure, it has worked on every cop TV show I have seen it tried on.  In the real world, things aren't quite so obvious.  Go back to your ivory tower, dean, and leave police work to people who know what they are doing.

There is a case to be made for adjustments to the civil liability of police officers and police departments.  In particular, Chief Justice Burger's long-shelved suggestion of expanded liability for Fourth Amendment violations in return for scrapping the exclusionary rule deserves to be taken out and reconsidered.  But Plumhoff doesn't support the case.  The late Mr. Rickard is the one responsible for his own death.

3 Comments

I think the line "shooting out the tires of a vehicle travelling over 100 mph may often work on an episode of TJ Hooker" is a line made for a Judge Kozinski opinion.

I think the idea of scrapping the 4th amendment exclusionary rule in favor of expanded tort liability for police violations is fantastic from moral perspective but might have more of a chilling effect than the current rule in that departments with limited budgets would likely encourage officers to be extremely cautious in warrantless searches perhaps allowing more crimins to escape than those who currently benefit from the exclusionary rule

Given the contents discovered on Judge Kozinski's computer, I think his opinions will stay away from using the word "hooker."

Bill, once again I wish I could like your comment ala facebook.

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