In the Los Angeles Times, criminologist Samuel Walker writes that he felt “horror” when his book was cited by Justice Scalia in Hudson v. Michigan:
. . . Justice Antonin Scalia cited me to support a terrible decision, holding that the exclusionary rule — which for decades prevented evidence obtained illegally by police from being used at trial — no longer applies when cops enter your home without knocking. Even worse, he twisted my main argument to reach a conclusion the exact opposite of what I spelled out in this and other studies.
The misuse of evidence is a serious offense — in academia as well as in the courts. When it’s your work being manipulated, it is a violation of your intellectual integrity. Since the issue at stake in the Hudson case is extremely important — what role the Supreme Court should play in policing the police — I feel obligated to set the record straight.
Scalia quotes my book, “Taming the System: The Control of Discretion in American Criminal Justice,” on the point that there has been tremendous progress “in the education, training and supervision of police officers” since the 1961 Mapp decision, which imposed the exclusionary rule on local law enforcement.
My argument, based on the historical evidence of the last 40 years, is that the Warren court in the 1960s played a pivotal role in stimulating these reforms. For more than 100 years, police departments had failed to curb misuse of authority by officers on the street while the courts took a hands-off attitude. The Warren court’s interventions (Mapp and Miranda being the most famous) set new standards for lawful conduct, forcing the police to reform and strengthening community demands for curbs on abuse.
Scalia’s opinion suggests that the results I highlighted have sufficiently removed the need for an exclusionary rule to act as a judicial-branch watchdog over the police. I have never said or even suggested such a thing. To the contrary, I have argued that the results reinforce the Supreme Court’s continuing importance in defining constitutional protections for individual rights and requiring the appropriate remedies for violations, including the exclusion of evidence. To the contrary, I have argued that the results reinforce the Supreme Court’s continuing importance in defining constitutional protections for individual rights and requiring the appropriate remedies for violations, including the exclusion of evidence.
Am I mistaken, or does this complaint ring quite hollow? I confess I am not familar with Professor Walker or his work. But If I understand his op-ed correctly, Justice Scalia did in fact cite Walker accurately for an argument Walker did in fact make: There has been tremendous progress in the education, training and supervision of police officers since the 1961 Mapp decision.
Here’s the passage from Hudson that cites Walker:
Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to “assume” that unlawful police behavior would “be dealt with appropriately” by the authorities, United States v. Payner, 447 U. S. 727, 733-734, n. 5 (1980), but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been “wide-ranging reforms in the education, training, and supervision of police officers.” S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950-1990, p. 51 (1993).
As best I can tell, Professor Walker’s complaint is that Justice Scalia cited his descriptive claim accurately, but then, without mentioning Walker, went on to reach a normative conclusion that Walker personally finds “terrible.” Walker’s book concludes that the Warren Court’s expansion of the exclusionary rule improved police practices, and Walker takes the normative position that a further expansion of the exclusionary rule would be a good thing. Scalia cites Walker’s book accurately about existing police practices, but then takes the normative position that in light of those changes there is no need to further expand the exclusionary rule. In other words, Scalia agrees with and cites Walker’s descriptive argument but then disagrees with Walker’s normative views. But contrary to the suggestion of Walker’s op-ed, Scalia does not suggest that Walker would agree with Scalia’s view about the normative scope of the exclusionary rule.
Professor Walker is certainly free to say that Scalia’s decision is “terrible.” But I don’t think Walker has a case that Scalia committed a “serious offense,” “misused evidence,” and “violated” Walker’s “intellectual integrity.”
UPDATE: Reading over Walker’s op-ed again, I’m struck by an amusing irony: the first paragraph of Walker’s op-ed misdescribes the holding of Scalia’s opinion. It’s not a big deal for an op-ed, of course, but it’s somewhat unfortunate in light of Walker’s charges.
I think Scalia is guilty of a certain amount of obfuscation here. He states that the court can give more discretion to police officers as they take constitutional rights seriously. Then he cites Walker.
There are two problems with the assumption albeit only one that touches on Walker’s citation. This is that Walker’s emphasis on the professionalisation of police officers presupposes a large degree of oversight by the courts. Scalia, however, uses the professionalisation rationale to fashion a test which involves less oversight by the courts. In doing so he obscures Walker’s reasoning.
I think this is true when you consider everything after the citation to United States v. Payner seems to run together; the reference to “increasing evidence” seems to read most fairly as an attribution to Walker.
Prof. Walker probably goes a little overboard in the second paragraph that you cite but the first would seem fine.
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Exactly the point that I was going to make regarding his misrepresentation of the holding in the first paragraph.
Moreover, he states “My argument, based on the historical evidence of the last 40 years, is that the Warren court in the 1960s played a pivotal role in stimulating these reforms.”
Thus, Mr. Walker is not even disputing that their HAS been a substantial professionalization of police forces; he just doesn’t want Justice Scalia to draw a conclusion from that fact that isn’t in line with his sensibilities.
More noteworthy, IMHO, is the fact that Mr. Walker hits the trifecta that all but ensured op-eds like this will get published:
1. Incorrectly frames the legal issue in a decision that the (insert name of left-leaning paper here) doesn’t like in a way that the (insert name of left-leaning paper here) does like.
2. Continues a year-long running story-line of major newspapers: Your civil rights are under attack by this administration and a right-wing court.
3. Is hyper-critical of the Left’s favorite legal boogie-man, Justice Scalia.
There was almost no chance that the L.A. Times – or the NY Times wouldn’t publish this op-ed.
[Commenting via Treo] Walker’s charges may be overstated, or simply to quick, but my impression from the excerpt you provide (I haven’t read the opinion) is that Scalia has misleadingly elided the causal connection between remedies like exclusion and the kind of increased police professionalism for which he cites Walker’s paper. To wit, if you just read the excerpt, you’d think the police were cleaning up their act completely sua sponte, without any prodding from the judicial branch. That’s a very misleading, arguably dishonest picture–at least (again) if the elision isn’t cured by some other portion of the opinion.
I have not read Walker’s work, but based on what’s in front of us I would argue that you’re mistaken, at least in part. It’s just common courtesy, if nothing else, to flag the fact that you’re using part of someone else’s work to support a conclusion that goes precisely the opposite direction from the work you’re citing. Maybe the guy’s going a little overboard in his reaction (I can hardly blame him, considering the immensity of being cited by the Supreme Court), but the point remains that Scalia was claiming Walker’s authority for a point Walker would not and obviously does not agree with. That’s not cool, clearly, and even if it’s not a “serious offense” you’d never encourage a student to do it, would you?
[OK Comments: Guest, I appreciate your civility, but I don't agree. You say that "Scalia was claiming Walker's authority for a point Walker would not and obviously does not agree with." But isn't that wrong? Scalia does not suggest that Walker agrees with Scalia's view of the exclusionary rule; my sense is that no one reading Hudson would reach that conclusion. Walker is only cited for a position that Walker does in fact agree with; his authority is claimed only for his view of current police practices.]
His threshold for “dismay” and “horror” must be quite low. As you show, the complaint would ring hollow even if the cited material reached a different normative conclusion. But the good professor also argues that it violates his intellectual integrity because he has reached a different normative conclusion in other works. So, it’s no fair citing an article unless you’ve read the author’s entire body of work and find no tension with anything. No wonder the Chief avoids law review cites.
I’m reminded of the late Senator Moynihan’s adage that “everyone is entitled to their own opinion, but not their own facts.” It looks to me like Scalia and Walker agree on the facts, but not in the conclusion which ought to stem from them. So long as the cited facts were not placed out of context, a claim which does not seem to be made here, I fail to see the academic dishonesty.
Walker’s beef amounts to this much: like literally dozens of other liberal-leaning scholars, he is dismayed by Hudson, but unlike those scholars, he has an interesting angle he can sell to the LA Times to have it out with Scalia in print. It’s not even a very good angle: as I pointed out at Althouse,
The bottom line? “I don’t like the Hudson result, and I don’t want to be associated with it.” You don’t hear Nan Aron complaining about it.
I’m not quite so sanguine. The author concluded that the reason for professionalization was the very precedential structure that the decision begins dismantling.
Now, of course it is correct that Scalia could embrace the one finding without the other, but I think it is dishonest, or would be academically, to not even mention the author’s causal association. Indeed, one might expect some explanation of why the source was deemed reliable for one point but not the other.
A parallel would be a judicial treatment of their own precedents holding: “A case is good authority when it stands for a proposition that the justice likes but ignored when it stands for a proposition the justice dislikes.” It happens but is hardly sincere.
I’m a little more sympathetic to the good professor’s point than the rest of you, although I don’t think Scalia is guilty of any kind of misconduct in quoting him. The fallacy of Scalia’s argument in Hudson can be demonstrated by reference to any area in which remedial measures have been adopted in the past.
If the past remedial measures were effective, that proves that remedial measures are no longer necessary.
If the past remedial measures were ineffective, that proves there’s no point in continuing an ineffective program.
The professor’s original argument was apparently “the Warren Court’s decisions were very effective in curbing police misconduct, and thus we should have more decisions like those.” This seems to me to be a logical, although not necessarily valid, argument.
But Scalia’s reply that “because the Warren Court’s decisions were effective, there’s no longer any need for decisions like those,” just seems silly for the reason I describe above. There are better arguments in support of the result in Hudson, and Scalia’s opinion makes several of them. This is one he should have left on the drawing board, because it carries no weight as a logical matter, and it leaves the applicability of the exclusionary rule up to nothing more than an ad hoc judicial determination of whether it seems like the police are generally well-behaved.
Incidentally, it seems to me that no one can be considered well-informed on the subject of the Warren Court’s criminal procedure decisions and their effect unless one has read Bill Stuntz’s brilliant work in this area.
I find Walker to be a little silly, but not wholly wrong in saying that Scalia misused his work. From what I understand, Walker said that the reforms of police departments were the direct result of the Warren Court’s interventions, and that such reforms would have been less likely to occur, and to a lesser extent, had it not been for the judicial decisions.
The Hudson passage you quote has a strong implication that the departments reformed themselves without an outside hand pressing them to do so, under penalty of their arrests going for naught if they didn’t meet the standards of Miranda, Mapp, etc.
“There has been tremendous progress in the education, training and supervision of police officers since the 1961 Mapp decision” simplifies what Walker seems to be trying to say, which is “There has been tremendous progress in the education, training and supervision of police officers since AND GREATLY BECAUSE OF the 1961 Mapp decision.”
While I haven’t read any of the works in question (including the relevant decisions), taking someone’s work out of context can be as serious a distortion as straightforward inaccuracy. By citing this book without mentioning the qualifications about causality, Scalia does seem to be misrepresenting this guy’s work.
I think that Steve, PG, etc. have correctly summarized Walker’s argument, but I think that argument is flawed precisely because Scalia’s opinion doesn’t say (as Steve puts it) that “remedial measures are no longer necessary.”
Scalia is declining to extend Mapp, not reversing it. He’s not saying that remedial measures aren’t necessary — just that additional remedial measures aren’t necessary. I think it’s probably incorrect factually, but it’s not invalid logic.
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Prof. Kerr: I appreciate your civility as well. I went back and reread Hudson but I must continue to disagree. Here’s my analogy. The renewal of the Voting Rights Act has been a hot topic lately, and several prominent experts have written and testified before Congress in favor of its reauthorization. No one would seriously dispute the fact that the Voting Rights Act has been tremendously effective. But one of the major issues, of course, is what conclusion, normative or otherwise, you want to draw from that fact. If you wrote a judicial opinion striking down a portion of the reauthorization, and you cited the work of one of those pro-reauthorization scholars in the course of arguing that the VRA was no longer needed – that would be really weird. The “facts” might be true, but it would be jarring and unnatural to cite them from such a work. I think it would be quite natural for that author to feel that there was something misleading about the very fact that you had cited her: “Why me? Go cite someone who agrees with you,” I imagine they would say. Just so, here. Again, maybe the guy’s overreacting – but being cited by the SCOTUS is a huge, huge deal, and I guarantee you it would have been easier for Scalia to find somebody else to cite than it will be for Walker to find another Supreme Court Justice to quote him in the Reports.
I think Orin Kerr got this one exactly right.
Certainly it is problematic to cite someone’s conclusion as part of an argument to reject one of their premises. However, this is not what Scalia did. As Mr. Lubin already observed Scalia cites walker to establish an observational fact they both agree on. This is no more problematic that a scientist citing an experimental result to support his theory even if the original experimenter uses it to argue for some other conclusion.
Now it’s perfectly fair to argue that Scalia’s reasoning is flawed and Walker had it right but at worst Scalia made a bad argument. Nothing here seems to support the charge of violation of intellectual integrity. In fact I think it is the ideologically motivated false charge made by Walker that is the violation of intellectual integrity.
In fact Scalia doesn’t even need to reject Walker’s causal conclusion to reach his decision. It seems perfectly consistent for Scalia to grant that it was the application of the exclusionary rule which caused the reform of police forces and then argue that only a lesser penalty for misconduct is now required to maintain this professionalism.
Or to put it another way just because I believe that martial law was instrumental in suppressing some riot or civil unrest doesn’t mean I can’t favor the return to standard police tactics once the unrest ends. When a type of lawbreaking is pervasive and common the government may need to impose severe sanctions on the offenders to change their behavior but once this sort of lawbreaking is rare a much lower penalty might suffice.
This isn’t to say I favor Scalia’s conclusion, in contrast to a ‘shoot to kill’ order I think the exclusionary rule has few costs compared to its benefits, but this is just a garden variety disagreement.
I argued the case (twice) for Mr. Hudson so I’m hardly unbiased, but Justice Scalia’s use of Professor Walker’s work is, at the very least, misleading. Professor Walker’s work stands for the proposition that the exclusionary rule has increase police professionalism. To cite that work for the proposition that the police have become more professional and, therefore, we don’t need to resort to evidentiary exclusion is breathtaking.
If I might analogize, suppose a warden wrote a report noting that there had been a dramatic reduction in escapes from her prison in the five years since the gun towers were constructed. Suppose further that the governor cited the warden’s report in support of his claim that the gun towers could be taken down because there had been so few escapes in the last five years. Wouldn’t the warden have a legitimate complaint about how the governor had cited her report?
So does Professor Walker.
David A. Moran
Associate Dean
Wayne State University Law School
d.moran@wayne.edu
[OK Comments: David, With all due respect, I don't think your analogy works. The key, I think, was that Scalia was contemplating whether the exclusionary rule needed to be expanded so that it covered knock-and-announce violations, which, historically, it has not done. Thus, the better analogy would be the governor citing the success of the existing gun towers as evidence for the view that no new gun towers needed to be built (rather than the view that the existing gun towers could be torn down).]
However, in this context, the constitutional knock-and-announce rule effectively constitutes a new wing of the prison, and the issue is whether gun towers should be built to protect the new wing much as they protect the existing prison…
Justice Breyer’s dissent cites CJLF’s brief for a point, even though his conclusion is contrary to the main thrust of our argument. It never occurred to us to complain. We were neither dismayed nor horrified.
Kent,
Okay, that was funny.
Orin,
Your comment about Hudson refusing to expand the exclusionary rule to the knock and announce rule is, with respect, completely wrong. The Court itself had twice ordered evidence excluded upon finding knock and announce violations. (Miller v. United States, 357 U.S. 301 (1958), and Sabbath v. United States, 391 U.S. 585 (1968)). Until two weeks ago, the rule in every single state except Michigan was that a knock and announce violation resulted in exclusion of evidence. Until two weeks ago, the rule in every federal circuit except the 7th was that a knock and announce violation resulted in exclusion. Hudson did not refuse to extend the exclusionary rule to somewhere it had not been before. On the contrary, the Court upset the rule that itself had applied for nearly a half-century and that had obtained in almost every American jurisdiction.
So my original analogy to the governor proposing to tear down the gun towers is just fine, thank you.
David Moran
The causal relationship between the improvement and the rule is in Walker’s conclusion, not in his facts. The facts (that there has been an improvement) are the same whether or not Walker is wrong in his proposed causal relationship.
If Walker’s paper had gone on to claim the cause was, say, that the black politicians elected in the cities over the last 40 years pressured the police departments into acting better, the facts themselves would have been utterly unchanged. It would have been perfectly appropriate for Breyer to cite the facts and disagree with this hypothertical-Walker’s conclusion.
If Scalia were making an academic argument, he’d be expected to provide his own alternate proposed cause. Or to say that he thought that community pressure would not now allow a relapse. Or any of a dozen other things. He did not, and that was intellectually lazy of him — but it doesn’t make his quotation of facts an offense. It just makes him lazy.
Anonymous Lunatic
David,
I greatly appreciate the cites — I had been looking for citations to early knock and announce cases in which evidence was suppressed, and no one had found any. Reading over Miller and Sabbath, though, it’s not clear to me that they are Fourth Amendment cases. They appear to be 18 U.S.C. 3109 cases, or perhaps federal common law cases. If that’s right, don’t Miller and Sabbath survive Hudson? I would think so.
Orin,
No, Miller and Sabbath don’t survive Hudson. It is true that they were section 3109 cases, but the Court strongly suggested in Miller and later explicitly stated in United States v. Ramirez, 523 U.S. 65, 73 (1998), and again in United States v. Banks, 540 U.S. 31, 42-43 (2003), that section 3109 was merely a codification of the same common law that was the basis of the Fourth Amendment knock and announce rule. Thus, the Court concluded that the constitutional standard announced in Wilson v. Arkansas was congruent with the “statutory” decisions in Miller and Sabbath.
By the way, in addition to Miller and Sabbath, the Court in Ker v. California, 374 U.S. 23, 37-41 (1963), at least assumed that the evidence would have been excluded under the authority of Mapp had the plurality not found that the failure to knock and announce was excused by the exigent circumstances.
David Moran
David,
I apologize if this question is exceedingly uninformed, but are you sure? I agree that the substantive right of 3109 is the same as the Fourth Amendment under Ramirez and Banks, but I’m not sure the remedy is. I gather that’s why the Court didn’t announce it was overruling Miller and Sabbath, and why the Court did not see Miller and Sabbath as having answered the remedies question; the remedies for 3109 and the Fourth Amendment are different. Given that, I would think that Miller and Sabbath survive Hudson.
Orin,
Your confusion is understandable because Justice Scalia, writing for the Court, chose to ignore Miller and Sabbath rather than deal with them. Wilson, Ramirez, and Banks confirm that the section 3109 standard Miller and Sabbath enforced is simply a codification of the Fourth Amendment knock and announce standard. Section 3109 contains no explicit remedy, so the Court in Miller and Sabbath applied the exclusionary rule, just as the Court had long applied the same remedy for Fourth Amendment violations, because the Court understood in both contexts that exclusion was the remedy necessary to deter the police from committing routine violations.
It would be bizarre, to say the least, for the Court to hold that exclusion is still the remedy for a section 3109 violation even though section 3109 is nothing more or less than a codification of the Fourth Amendment standard, the violation of which cannot result in exclusion. I don’t think anyone would seriously argue that the remedial aspects of Miller and Sabbath survived Hduson even though the Court chose not to give Miller and Sabbath the decent burial they deserved.
David Moran
I’ve read and re-read the part of Scalia’s opinion where he quotes Walker, and I see no justification for people’s attacks on him. Scalia does not say, or imply, anything about why the “professionalism” has increased. It’s quite probable that Miranda et. al. had something to do with it. But, IMHO, it’s delusional to think that’s the only reason it happened (e. g. you believe that more media coverage of issues had no impact at all?).
Further, unless you’re going to claim that the “professionalism” will be reversed the second the Courts stop slapping around the police departments, how it came about is not very relevant.
David,
Not only would *someone* seriously make that argument, I believe I am making it right now. You can either conclude that Scalia wrote a really terrible opinion ignoring Sabbath and Wilson and silently overruling them, or else you can conclude that Scalia wrote a sensible opinion in which he didn’t address them because they were statutory cases that just weren’t implicated. Perhaps my reading is quirky, and maybe future courts will rule in the way you suggest, but it’s not immediatly clear to me why it is so off-the-wall.
Further, I think it was bizarre for the Court to say (as it has in the past) that the substantive prohibition in 3109 prohibits whatever the Fourth Amendment prohibits. With that said, I don’t know why it would be bizarre for the court to say that the remedy for 3109 is different from the remedy of the Fourth Amendment. It would just mean that the remedy for k&a violations depends on whether you happen to be in federal court or state court (which I gather was the law after Miller and Sabbath until the Supreme Court concluded that the K&A requirement was part of the Fourth Amendment).
Orin,
OK, here’s one that’s easy to test empirically, and I’m willing to put my money where my mouth is. If you’re right, we should see federal criminal defendants arguing that section 3109, as interpreted in Miller and Sabbath, still requires federal courts to suppress evidence seized after knock and announce violations despite Hudson. In fact, I have no doubt that some federal criminal defendants will make that argument.
But if you’re right that Hudson didn’t overrule Miller and Sabbath, then the lower federal courts should uphold that argument. That is, lower federal courts should continue to suppress evidence seized after knock and announce violations by invoking section 3109 instead of the Fourth Amendment.
There have been a quite of number of federal circuit opinions, published and unpublished, supppressing evidence for Fourth Amendment knock and announce violations in the last five years. Therefore, if you’re correct, there should continue to be a steady stream of federal appellate opinions suppressing evidence for section 3109 knock and announce violations over the next five years.
So, here’s my challenge. I will wager $500 that not one federal appellate court will suppress evidence under section 3109 between now and June 27, 2011 (5 years from today). In fact, I doubt that even one federal district judge will suppress evidence under section 3109, but I won’t put my money on that because there are a few loose cannons on the district bench.
I am confident that there will not be a single federal appellate opinion suppressing under section 3109, published or unpublished, because the circuits will recognize that the remedial component of Miller and Sabbath is a dead letter after Hudson.
Game?
David Moran
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David,
You argued Hudson, and I just read Wilson and Sabbath for the first time yesterday; this is your sand box, not mine. Given that, I don’t think it would be wise for me to make high-dollar bets with you about what courts will do.
With all due respect, though, if your response is a bet that courts of appeal won’t actually take the interpretation that I think is right, I’ll take that as a recognition that the argument is plausible — and, to get back to our earlier discussion, that its incorrectness is not clear from Hudson itself.
“…but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been “wide-ranging reforms in the education, training, and supervision of police officers.” S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950-1990, p. 51 (1993).”
It appears to me that Scalia quoted Walker as support for his conclusion in the preceding sentence, not merely a divorced recitation of fact.
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