Keynote Address

Georgia Law Review Georgia Law Review

Article 2

Volume 51Number 4

Keynote Address Keynote Address

Erwin Chemerinsky University of California, Berkeley, School of Law

SYMPOSIUM PROTECT AND SERVE: PERSPECTIVES ON 21ST CENTURY POLICING JANUARY20, 2017

Erwin Chemerinsky*

II.

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Michael Brown, Eric Garner, Walter Scott, Laquan McDonald, Freddy Gray. So many others like them, who died as a result of police abuses. It is, of course, why we are here today. We are also here, as we have discussed throughout the day, to discuss the day to day violations of constitutional rights by police that are endemic across the country.

It is important to remember this is not new. Almost fifty years ago, the National Commission on Civil Disorders, often called the Kerner Commission, released its report, and discussed how almost every major riot that occurred in a city in the 1960s had been The Kerner precipitated by an Commission concluded that increasingly the United States was becoming two separate nations; one white, one black. It talked about police abuses that were occurring regularly in the black community.

incident of police abuse.

I look at the issues that we have focused on today through the lens of what I learned during a study of the Los Angeles Police I was asked to do this study in Department seventeen years ago. the wake of what was called the Rampart scandal. A police officer in Los Angeles, Rafael P6rez, was caught substituting flour for cocaine in the police evidence room. It turns out he had been doing that for some time. He would put the flour in the evidence room and would take the cocaine and sell it on the street. As his trial neared, he offered a deal to the prosecutors. He said that if they reduced the charges and the sentence, he would give information about serious abuses by members of the Los Angeles Police Department. He described many such abuses. Just to mention one example, Ovando had the misfortune of coming into contact with Perez and his partner Nino Durden. They had a verbal altercation. At this point, Perez and Durden shot Ovando, causing him to be permanently paralyzed. Perez and Durden planted a gun on Ovando, lied in court, and Ovando was convicted. Ovando was sentenced to twenty-four years in prison.

there was Javier Ovando.

As part of his plea deal, Perez told the truth about what happened. Ovando was released and subsequently settled a lawsuit against the city for a significant sum. Perez told of many

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instances of innocent people who had been convicted because of police planting evidence and lying in court.

I was asked to head a team of civil rights lawyers looking at the Los Angeles Police Department in light of this scandal. I personally interviewed almost one hundred police officers as part of the preliminary report. Overall, I was tremendously impressed by the professionalism of the police officers I met. So many of them told me that the proudest day of their lives was the day they got their badges. But I also learned from them how they were taught from the first days in the police academy to violate people's constitutional rights. They were told by their instructors the law on the books and then they were told how policing was really done in Los Angeles.

I learned that a code of silence existed in the Los Angeles Police Department. Officers told me that if they reported misconduct by others, they feared that their backs would not be protected the next time they were in danger in the field. They told me that, if they reported misconduct by the officers, they feared that the brass would transfer them to another location far less desirable. In fact, I learned a new phrase in doing this report: "freeway therapy." Freeway therapy referred to how Los Angeles is a very large city-in fact it is two hours between the south to the north tip-and how they would be transferred to the precinct furthest from their home, and a very long distance on the Los Angeles freeways.

I learned a great deal about the culture of the Los Angeles Police Department and how it was responsible for the misconduct that was repeatedly occurring. As I said in my report, it was a department that very much exalted Dirty Harry and shunned Serpico. As a result of what I learned about the Los Angeles Police Department, and as a result of what I have learned from my career as a law professor and a lawyer, my thesis is that American society lacks adequate mechanisms to prevent and remedy police misconduct. Until mechanisms are developed to prevent and remedy misconduct, the problem of police abuse and constitutional violations will continue unabated.

Think for a moment about what are the possible mechanisms for preventing and remedying police misconduct. We could look to the political process and the disciplinary systems that exist within

police departments. We could look to the civil justice system and the ability to sue police departments and police officers for injunctions and monetary relief. We could look to the criminal justice system and the ability to prosecute officers and the possibility of the exclusion of evidence as a result of violations of the Constitution. What I want to argue to you in my remarks this afternoon is that all of these mechanisms are inadequate, but all could be greatly improved to solve the problem. I will consider them one at a time.

Another problem with focusing on the political process is that it does not deal with the day-to-day violations of rights that are largely invisible to the public. Actors in the political process, to be sure, hears about the high-profile shootings and deaths, like the names I mentioned at the beginning. But it rarely comes to the public's attention when the police engage in illegal stops and abusive frisks. When it does, rarely does it produce concern, let alone outrage.

The high-profile incidents, like those I mentioned, do attract public attention. Sometimes they do produce responses, but I saw in my study of the Los Angeles Police Department that there is a pattern. There would be a highly publicized incident of police abuse, there would then be a study and recommendations would be made, some would be adopted, most would be ignored, and the city would declare a victory over the problem of police abuse until the It happened in the 1950s in Los Angeles. There next incident. there was a study, a report, was a high-profile recommendations-some were adopted, most were not-the city declared victory until there were the Watts Riots in the 1960s, followed by the McCone report, the Rodney King beating in 1991, followed by the Christopher Commission report, the Rampart I believe that the pattern in Los Angeles is scandal, and so on. typical of so many major cities where the focus on police abuses follows a high-profile incident and is short-lived. It leads to some changes, but, largely, the recommendations get ignored.

incident,

It is in this context I feel we can also see why the disciplinary mechanisms that are created within police departments are woefully inadequate. They are especially inadequate when dealing with the day-to-day constitutional violations that occur across the street. But even when it comes to excessive force, including excessive force that takes innocent peoples' lives, often the officer is found to have acted in policy and, often no discipline is imposed. Some of this is because of the attitudes of those who serve on those is tremendous insularity of police disciplinary boards; there attitudes within police departments. When I was doing my study of the Los Angeles Police Department after the Rampart scandal, the then chief of the Los Angeles Police Department, Bernard Parks, said to my face: "You can't criticize this department until you stand up to the bullets." This is the attitude of many police

departments, and so the boards of review often lean toward accepting the stories of officers, rejecting the stories of victims. They bend over backward to find even serious police misconduct to be within policy. We have yet to develop adequate disciplinary systems within most police departments.

If the political process is not the solution, it is essential to turn to the courts. And, of course, we do need the courts to enforce the Constitution here and in all areas. So, I next want to focus on is the civil justice system and the ability to bring civil suits against police departments so as to prevent and remedy misconduct. Here, I believe that the Supreme Court has made it unduly difficult to use civil suits to hold police departments accountable. Let me talk about three different mechanisms that might exist for civil suits.

One possible mechanism for police accountability is the ability to sue cities and police departments for injunctive relief. City of Los Angeles v. Lyons,2 in 1982, is the key case.

Adolf Lyons was a twenty-four-year-old African-American man. He was stopped about two in the morning for having a burned-out taillight. An officer ordered him out of the car. The officer slammed Lyons' hands above his head. Lyons complained that the keys in his hand were cutting into the skin of his palm. At that point, the officer administered a chokehold on Lyons and rendered him unconscious. When Lyons awoke, he had urinated and defecated. He was spitting blood and dirt. He was given a traffic ticket and allowed to go. He did some research, and he discovered at that point that sixteen people in Los Angeles died from the use of police chokeholds. Almost all, like him, were African-American men. This led to an infamous incident with the then Police Chief Daryl Gates. Chief Gates was asked at a press conference why was it that virtually all who died from the chokehold were AfricanAmerican. Gates's response, and I quote verbatim, was because of

"physiological differences between black people and normal people."

Lyons sued the city of Los Angeles for an injunction to stop police officers from using the chokehold except when necessary to protect the officer's life or safety. The United States Supreme Court, in a 5-4 decision, ruled that Lyons lacked standing to sue for an injunction. The Supreme Court said that Lyons could not show that he personally was likely to be choked by the police again in the future. The Court said a plaintiff, who is seeking an injunction must show a likelihood of future harm. This makes it enormously difficult to get an injunction against abusive police behavior. There was a case in Chicago by women who had been subjected to strip searches by the police when stopped for routine to stop the Chicago Police traffic violations. this degrading, humiliating, in Department unconstitutional practice. But the district court said, in light of City of Los Angeles v. Lyons, that no injunction would be possible. The women could not show that they would likely to be stopped I have been part of so and strip searched again in the future. many conversations with lawyers over the last thirty years where they are seeking to enjoin an unconstitutional police practice, but they cannot bring a suit because they cannot think of a way to get around City of Los Angeles v. Lyons.

from engaging

They wanted

Officers can be sued for money damages. Cities can be sued for money damages. Looking back at City of Los Angeles v. Lyons, Justice White's majority opinion said Lyons would have a suit for money damages. But there are many obstacles to bringing a successful suit against the police for money damages. For the dayto-day violations-the illegal stops and illegal searches-it is not likely that there is going to be enough in the way of money damages to interest a lawyer in taking the case. And in those, as well as in more serious cases, it is often going to be the police officer's word against the person who claims a violation of rights. Often the plaintiff is somebody who has been convicted of a crime.

The obstacles I want to talk about with civil suits are those that the Supreme Court has created. The Supreme Court has made it enormously difficult to sue officers or cities for money damages.

With regard to the ability to sue officers, the Supreme Court has is sued for money said that every government official who invoke damages-local, state, or federal-has the ability immunity as a defense. It does not matter if it is a suit against a state or local official for money damages under 42 U.S.C. § 1983 or against a federal official for a so-called Bivens3 action. There always is an immunity defense.

to

For some actions, there is absolute immunity: a complete bar on For example, police officers have absolute money damages. immunity in a suit for money damages for testimony they give as a witness. Briscoe v. LaHue,4 in 1983, said a police officer cannot be civilly sued for money damages even if the officer commits perjury on the witness stand that leads to the conviction of an innocent Prosecutors also are often protected by absolute person. immunity. Prosecutors have absolute immunity for all of their prosecutorial tasks. So a prosecutor, who knowingly uses perjured testimony that leads to the conviction of an innocent person, cannot be sued for money damages. Imbler v. Pachtman,5 in 1976, involved a prosecutor who did just that and it resulted in the conviction of an innocent person who spent nine years in prison. Nonetheless, the Supreme Court said that the prosecutor had absolute immunity.

in prison

More recently, was Van de Kamp v. Goldstein.6 Tommy Lee for Goldstein spent twenty-three-and-a-half years murders he did not commit. At the time of his trial, there was no physical evidence linking him to the murder. There were no eyewitness. There was no confession. The only testimony against him at trial was from two people who, at different points, shared a jail cell with him and said they heard Goldstein admit to the murders. One recanted the testimony. The other was a longtime police informant, ironically, with the name "Edward Fink." Fink had a long history of making deals with the police to get a in exchange for giving reduction of charges and sentences testimony against those with whom he had shared a jail cell. Fink testified that, when he was in a cell with Goldstein in Long Beach,

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he heard Goldstein admit to the murders. Goldstein's lawyers asked the Deputy District Attorney if Fink had ever made a deal for giving testimony in exchange for a reduction in charges and sentences and if there was such a deal here. The Deputy District Attorney said no. Goldstein was convicted, and, as I said, he spent twenty-three-and-a-half years in prison.

Ultimately, a federal judge granted his habeas corpus petition. A federal judge said there was no credible evidence at all that Goldstein committed the murder, and, in fact, it turned out that, though not disclosed to Goldstein's lawyers, there was a deal in place for that case for Fink to get a reduction of charges and sentences in exchange for testimony. Goldstein, after being released from custody, knew he could not sue the Deputy District Attorney because of prosecutorial immunity. Instead, he sued the then District Attorney, John Van de Kamp, saying that the District Attorney's office failed to implement a policy to ensure that such exculpatory, impeachment evidence was disclosed, as required under Brady v. Maryland.7 The Ninth Circuit said this is an administrative failure. But the Supreme Court, in an opinion by Justice Stephen Breyer, unanimously said the District Attorney was protected by absolute immunity. The Court said all of the administrative choices were linked to what happened in the courtroom and thus there could be no liability.

When government officials do not have absolute immunity, they have what is called qualified immunity. Qualified immunity, according to the Supreme Court, means that the government official can be held liable only if he or she violates a clearly established right that every reasonable officer knows and it has to be a right established beyond dispute. In case after case over the last decade, the Supreme Court has found qualified immunity to protect police officers who use excessive force. For example, a decade ago, there was Brosseau v. Haugen.8 The case involved a police officer, who was chasing an individual. The person being chased got into a car and began to back out, and the officer fired a number of shots in the car, seriously, though thankfully not fatally, wounding the driver. The driver sued, saying this was excessive police force under the circumstances. The United States

Court of Appeals for the Ninth Circuit said this was a jury question to decide. The United States Supreme Court reversed. The Supreme Court said there were no cases on point saying a police officer can be held liable in these specific circumstances, therefore, the officer was protected by qualified immunity.

Another case, from just a few years ago,

is Plumhoff v. Rickard.9 A police officer stopped a car with a burned-out headlight. The officer asked the driver if he had been drinking. The driver said no. The officer asked the driver to get out of the car. Rather than do so, the driver sped away. A high-speed chase ensued. It went to almost one hundred miles an hour, and, at one point, the officers thought they had pinned the car they were chasing, but then the car got away. The officers fired three shots at the car. When the car still did not stop, the officers fired twelve more shots into the car. The driver and the passenger were killed. The estate of the driver sued the police, saying this was excessive police force in violation of the Fourth Amendment. The estate said there was no need to use deadly force when the underlying offense was a burned-out headlight. The officer could let the car go. They had the license plate number. They could track down the driver and then arrest the driver for evading arrest and the high-speed chase.

The United States Federal Court of Appeals for the Sixth Circuit said the case should go to a jury to decide whether there was excessive force. But, instead, the United States Supreme Court said that the police officers could not be held liable. Once more, the Supreme Court was unanimous. Justice Alito wrote for the Court and there were two parts of his opinion. First, he said that there was no violation of the Fourth Amendment. He said, when there is a high-speed chase and the police perceive that innocent people might be in danger, the police can use deadly force and continue to use deadly force until the car stops. This now means that in a high percentage of all of these chases, the police can shoot and keep shooting until those in the car are dead. But then the Court went even further and said, even if there was a violation of the Fourth Amendment, the officers were protected by qualified immunity. The Court explained that there is no case on

If you put together point that this behavior is unconstitutional. the absolute immunity situations with qualified immunity, you see how difficult it is to civilly sue police officers for money damages.

The other possible defendant, when it comes to suing for money damages, is to sue the city and the police department that employs the officers. But here, too, the Supreme Court has created significant obstacles to hold local governments liable. In 1978, in Monell v. Department of Social Services,10 the Supreme Court said that a local government can be held liable only if its own policies violate the Constitution. A local government cannot be held liable on a respondeat superior basis. That is, of course, different than the usual rule in tort law, which provides that an employer is liable for the torts-the harms-inflicted by their employees in the scope of their duties. But it is not so when it comes to suits against local governments.

In the years since Monell v. Department of Social Services, the Supreme Court has made it ever more difficult to hold local governments liable. Often these have arisen in the context of police abuses. Let me mention a couple of examples. For example, in Bryan County v. Brown"1 in 1997, a sheriff decided to hire a relative, who did not meet the usual criteria for hiring at the Sheriffs Department because of a police record and a pretty serious history of violent behavior. The sheriff knew about this, and he decided that he would not give a gun to this deputy sheriff. An incident arose where the officer, the deputy sheriff, pulled a car over. There was an exchange of words, and the officer pulled the passenger of the car, a woman, out with great violence. In fact, so much force was used that when the woman landed on her knees, permanent structural damage was done, and she had to have replacement knees on both of her legs.

The suit was brought against the police department. The Supreme Court had said previously that deliberate indifference in hiring, training, and supervision could be used to establish policy. The Supreme Court ruled 5-4 that the local government could not be held liable. The Supreme Court said it was not foreseeable that this specific injury would result from deliberate indifference. To hold the city liable, it has to be foreseeable that the particular

harm would result. It is so difficult to be able to prove that with the specificity required by the Supreme Court.

is Connick v. Thompson.12

A more recent example

John Thompson spent eighteen-and-a-half years in prison for a murder he did not commit. At the time of his trial, the deputy District Attorney was given blood evidence. It was part of the jeans that Thompson was wearing allegedly at the time of the murder. Under Brady v. Maryland, the deputy District Attorney was required to make available that blood sample so the defense lawyer could do their own testing. The deputy District Attorney did not disclose the existence of the blood evidence. Thompson was convicted and sentenced to death. Many years later, when this prosecutor was literally on his deathbed, dying of cancer, he told another deputy District Attorney about the blood evidence and how it was hidden. That deputy District Attorney had the obligation to come forward, but he also did not do so.

Literally just weeks before Thompson's scheduled execution, through a series of coincidences, his lawyers learned of this blood evidence. Thankfully, it was still there in the police evidence room. Testing was done. Not only did not the blood match Thompson's DNA, it did not match his blood type. There was a new trial and Thompson was acquitted. He brought a civil suit against the jurisdiction, the New Orleans parish, for a violation of his rights under Brady v. Maryland. Thompson claimed there was a long pattern of New Orleans, Louisiana, through its prosecutor office, violating Brady v. Maryland. The jury in the federal district court gave Thompson a large judgment. The United States Court of Appeals for the Fifth Circuit affirmed, but the United States Supreme Court, in a 5-4 decision, reversed.

Justice Clarence Thomas wrote the opinion for the Court. Justice Thomas said one incident is not enough to establish a municipal policy. Because the Court saw this as just one incident, Thompson could not recover anything from the city of New Orleans. Justice Ginsburg wrote a powerful dissent saying this is five different not just one prosecutors who came to know of this blood evidence, and not one She said this is not the only Brady of them came forward.

She said there were

incident.

violation in this case. She said the police had a witness, who said that the assailant had short hair. Thompson had a large Afro at the time of the murder. Also, there is a great deal of evidence of other Brady violations by this prosecutor's office. Nonetheless, the Court said there could be no liability.

So, when it comes to money damages, besides all the practical hurdles, the Supreme Court, by immunity doctrine, by requiring proof of a municipal policy, has made it so hard for individuals to recover.

In addition to suits for injunctions and for money damages, a third tool is a provision of federal statutory law: 42 U.S.C. § 14141. This statute says that federal law prohibits police departments from having a pattern and practice of constitutional violations, and it also allows the United States Government to sue to enforce this prohibition. It is a law that was adopted in 1994. It has been a tool that has been used successfully in many cities to bring about significant police reform. The place that I know best is the city of Los Angeles. After the Rampart scandal, the United States Department of Justice sent a letter to the city of Los Angeles, saying that they believe there was a pattern and practice of police violations of the Constitution. City officials then negotiated a consent decree with the United States Department of Justice. The consent decree, which is over one hundred pages long, brought about much-needed reforms with regards to the Los Angeles Police Department. Just to mention a few examples, the Los Angeles Police Department never had a system for tracking disciplinary violations by police officers. When an officer would come up for a promotion or transfer, there was no way to know what was the history of disciplinary violations. One was created as a result of the consent decree.

There was a serious problem in Los Angeles and across the country with regard to racial profiling. Police officers are required under the consent decree to record the race of those they were stopping. Just that practice of recording has had a significant I could go on with so many effect of lessening racial profiling. other reforms from the consent decree. A monitor was appointed and a federal judge oversaw the implementation of the consent

decree. The Los Angeles Police Department still has problems, but there is no doubt that the consent decree made a huge difference in the changing of policing, and I could point to other cities where this is so. Recently, the Justice Department sent a letter to the City of Chicago saying that there is a pattern and practice of violations. Earlier this year the Justice Department sent notice to the Orange County Sheriff and Orange County District Attorney's office, saying there is a pattern and practice of violations.

it

that

.Unfortunately,

is quite unlikely

the Trump Administration and the Sessions Justice Department are going to use the authority for § 14141. Attorney General Jeff Sessions in his confirmation hearings expressed his view that § 14141 should not be used. As Attorney General, he has criticized these consent decrees and clearly seeks to end them. Thus, one of the few tools that has been used effectively in recent years seems unlikely to be implemented in the years ahead.

In addition to addressing these reforms through the political process and civil suits, there is the possibility of action through the criminal justice system. There is the possibility of prosecuting police officers when they violate the law. To be clear, this is likely to be used, if at all, only in the most egregious cases: the excessive force cases that lead to death or serious bodily injury. It is unlikely that police officers are going to be criminally prosecuted for stops or arrests that violate the Constitution. But even when it comes to the most serious cases, incidents of death, criminal prosecutions rarely are brought and rarely are successful. For example, in this symposium, Professor Green discussed how prosecutors depend on police officers for their day-to-day work and are unwilling to challenge I certainly saw that and them. discussed that in my report on the Los Angeles Police Department. I have also seen that often judges are unwilling to stand up to prosecutors and police officers.

One of the things that I heard about when I did my report that I had never focused on was how in California, each side of the case, including in a criminal case, has the statutory right to exclude one judge; to exercise a peremptory strike over judges. I heard that

judges were very afraid that if they were aggressive in dealing with police misconduct, prosecutors would use the peremptory challenge to continually paper that judge so that he or she could not hear criminal cases. Many years later, I now see exactly that happen where I live in Orange County, California. A superior court judge, Thomas Goethals, found that the Orange County Sheriff's Office and District Attorney were systematically violating the Constitution by using jailhouse informants in a way that violated the Massiah13 case and lying about it in court. When Judge Goethals first ordered a hearing to be held on this, before he did anything else, the District Attorney's Office began papering him. Between February of 2014 and December 2015, Judge Goethals was assigned fifty-eight murder cases. The District Attorney's Office disqualified him on fifty-five of the murder cases. In the prior three years, he was disqualified only once out of thirty-six cases. This was clear retaliation for standing up to the District Attorney's Office. I have no doubt it was about sending a message to judges in the Superior Court of Orange County that if they challenged the District Attorney's Office, this is what they would face.

I represented the Superior Court of Orange County, arguing I lost 2-1 in the summer that this abuse should not be allowed. 2016, and, just in November, the California Supreme Court denied It, too, creates serious review with three justices dissenting. obstacles having the courts deal, including in criminal cases, with the problems of police misconduct.

One of the main tools we have in the criminal justice system for dealing with day-to-day police misconduct is the exclusionary rule. In fact, the Supreme Court long has said that the exclusionary rule exists to deter police misconduct. The exclusionary rule is not new; it was announced by the Supreme Court in United States v. Weeks14 in 1914, and I can find antecedents to the exclusionary rule going back to English law. It was applied to state and local governments in Mapp v. Ohio15 in 1961. But the Supreme Court has continually reduced the application of the exclusionary rule and lessened the likelihood of providing a deterrent. Also, as

Professor Sundby explained, the Supreme Court has reduced the protections of the Fourth Amendment. But even if we get past the problems that Professor Sundby mentioned, there is not going to be the deterrent of the exclusionary rule because of what the Supreme Court has held.

the Supreme Court held

Consider a few of the key cases here.

In 1976, in Stone v. Powell,16 that claims of Fourth Amendment violations, claims that the exclusionary rule should apply, cannot be raised on habeas corpus. Habeas corpus in federal court is a key way to ensure that the Constitution is being enforced in criminal matters. But the Supreme Court said, and it has now been forty years, that the exclusionary rule cannot be enforced on habeas corpus. In 1984 in United States v. Leon,17 the Supreme Court for the first time created the so-called "good faith" exception to the exclusionary rule. Police officers went to a magistrate for a warrant, even though they clearly did not have a basis for probable cause, but they got one nonetheless and then executed the warrant. The claim was that the search violated the Fourth Amendment, but the Supreme Court said that the exclusionary rule did not apply since the police were relying in good faith on the warrant that had been issued by the judge.

The Supreme Court went even further and created a broader exception to the exclusionary rule in 2009 in Herring v. United States." There, Chief Justice Roberts, writing for the Court in a 5-4 decision, said that the exclusionary rule applies only to intentional or reckless violations of the Fourth Amendment or if there is a systematic policy violating the Fourth Amendment. The to negligent or good faith exclusionary rule does not apply violations of the Fourth Amendment. Leon had said that the exclusionary rule does not apply when the police rely in good faith on a warrant issued by a magistrate or judge. Herring went farther and said that, so long as the police are acting in good faith the or as exclusionary rule does not apply at all. The line between what is reckless and what is negligent is always going to be ephemeral. But even if you accept Chief Justice Roberts's premise that the

long as the police are only acting negligently,

exclusionary rule exists just for the sake of deterrence, negligence liability exists so as to deter wrongful behavior. Why not say the exclusionary rule should apply if there is a negligent violation because we are trying to deter police from infringing on the Fourth Amendment?

The most recent limitation on the exclusionary rule, and a quite significant one, was in June of 2016 in Utah v. Strieff.19 In Salt Lake City, police got an anonymous tip that drug dealing was going on in a house. An officer, Douglas Fackrell decided to watch the house. He saw a man go in and quickly come out. He stopped the man and asked the man his name. The man answered honestly and said his name was Edward Strieff. Fackrell briefly detained Strieff to see if there was an outstanding warrant. There Fackrell was an old warrant for Strieff: a traffic violation. arrested Strieff pursuant to that warrant. Fackrell did a search incident to that arrest and drugs were found. The question in Utah courts and the United States Supreme Court was whether the drugs had to be excluded as the product of the illegal stop. The State of Utah conceded in the Utah courts and in the United States Supreme Court that the stop was illegal, that there was not reasonable suspicion to justify the stop, as the Constitution requires. The Utah Supreme Court, not usually regarded as one of the more liberal state supreme courts in the country, unanimously held that the evidence had to be excluded. Justice Lee, writing for the Court said the police stop was illegal, therefore all the evidence gained was the so-called fruit of the poisonous tree.

The Supreme Court reversed in a 5-3 decision. Justice Thomas wrote for the Court joined by Chief Justice Robert, Justice Kennedy, Justice Breyer, and Justice Alito. Justice Sotomayor wrote a passionate dissent joined in large part by Justice Justice Ginsburg. Thomas focused on the so-called attenuation exception to the If there is a significant intervening event exclusionary rule. between the violation of the Fourth Amendment and the resulting search, so as to attenuate the taint, the evidence comes in. The Court said that the police officer discovering the outstanding

Justice Kagan wrote a separate dissent.

Bryant County v. Brown or, more recently, Connick v. Thompson were 5-4 rulings. Even the most recent case that I talked about, Utah v. Strieff was 5-3.

Until November 8th, I was optimistic that there was a possibility that there would be a change in the composition of the Supreme Court that would lead to the reconsideration of these decisions. After all, from 1971 until February 13, 2016, always at least five and sometimes as many as eight justices were appointed by Republican presidents. We had the possibility that, for the first time in forty-five years there would be a majority of justices appointed by Democratic presidents. They could reconsider these I was hopeful that, in light of the attention on police doctrines. abuse across the country, there would be a Court that would be responsive to it. Justice Sotomayor's dissent in Strieff could be the light to pave the way.

After November 8th, it is clear that there is not going to be this change on the Supreme Court for the foreseeable future. There even could be a Court that will be much more restrictive on such I think if either Justice Ginsburg, Justice Kennedy, or suits. Justice Breyer leaves the Court, there could well be five votes to completely eliminate the exclusionary rule in all cases. This is not going to be an administration to use the federal statute for practice and policy liability. This reflects my general feeling now of being more afraid for the country and the things I believe in than any time in my life.

The Monday after the election, the students held a forum at my law school. And I concluded my remarks to the students, as I conclude here, by saying that while it is understandable for those with my values to be upset, we really only have two choices. When we talk about police abuses and what is to be done in the years ahead, we only have two choices. We can give up, or we have to fight harder, and that leaves only one choice. So when it comes to what we have discussed at this symposium today-the problems of police abuse-our only choice is to fight harder and better than we have before.

--- FOOTNOTES ---

Part of the Law Enforcement and Corrections Commons

SUMMER 2017

1.

III.

TABLE OF CONTENTS

INTRODUCTION

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.........982

THE POLITICAL PROCESS

THE CIVIL JUSTICE SYSTEM A. SUITS FOR INJUNCTIVE RELIEF B. SUITS FOR MONEY DAMAGES.......................987 C. 42 U.S.C. § 14141..............................993

986 986

IV.

CRIMINAL PROSECUTIONS

V.

CONCLUSION

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......998

Dean and Professor of Law at the University of California, Berkeley, School of Law.

I. INTRODUCTION

II. THE POLITICAL PROCESS

As you look across the country, as you think about the other papers in this symposium, you see so much how the political process continually fails to prevent and remedy police misconduct. There are many explanations for this. Generally, public pressures are for more aggressive law enforcement, not for the protection of rights of suspects and criminal defendants. After all, when was the last time that any state or city adopted a law to expand the rights of criminal suspects or criminal defendants? When was the last time the state ever adopted a law trying to make more protection for prisoners' rights? I think the political pressure has always been in one direction: for aggressive, even overaggressive, law enforcement. This, of course is reflected in the tremendous over-criminalization in the United States. The United States has five percent of the world's population, but it has twenty-five percent of the world's prisoners.

Also, the political process does not work because of the identity of the victims of police misconduct. As discussed throughout this symposium, the victims are disproportionately individuals of color, and the political process, historically, has been far less responsive to their needs. The Carolene Products' footnote, number four, got it right in 1938 that the political process does not provide an adequate safeguard for discrete and insular minorities. This includes when discrete and insular minorities are the victims of police abuse.

I United States v. Carolene Prod. Co., 304 U.S. 144 (1938).

III. THE CIVIL JUSTICE SYSTEM

A. SUITS FOR INJUNCTIVE RELIEF

2 City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983).

B. SUITS FOR MONEY DAMAGES

3 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). 4 Briscoe v. LaHue, 460 U.S. 325 (1983). 5 Imbler v. Pachtman, 424 U.S. 409 (1976). 6 Van de Kamp v. Goldstein, 555 U.S. 335 (2009).

7 Brady v. Maryland, 373 U.S. 83 (1963). 8 Brosseau v. Haugen, 543 U.S. 194 (2004).

Plumhoffv. Rickard, 134 S. Ct. 2012 (2014).

10 Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658 (1978). 11 Bd. of Cty. Comm'rs of Bryan Cty., OkI. v. Brown, 520 U.S. 397 (1997).

12 Connick v. Thompson, 563 U.S. 51 (2011).

C. 42 U.S.C. § 14141

IV. CRIMINAL PROSECUTIONS

1s Massiah v. United States, 377 U.S. 201 (1964). 14 Weeks v. United States, 232 U.S. 383 (1914). 15 Mapp v. Ohio, 367 U.S. 643 (1961).

16 Stone v. Powell, 428 U.S. 465 (1976). 17 United States v. Leon, 468 U.S. 897 (1984). 18 Herring v. United States, 555 U.S. 135 (2009).

19 Utah v. Strieff, 136 S. Ct. 2056 (2016).

arrest warrant was a significant intervening event enough to attenuate the taint, and the evidence could come in.

Justice Sotomayor, in her vehement dissent, talked about the large number of outstanding arrest warrants that exist in the United States. She quoted United States Department of Justice statistics that in Ferguson, Missouri, about eighty percent of the adult population was covered by an outstanding arrest warrant. She spoke about how degrading it is to be stopped by the police. talked especially about what this means for minority She communities. She talked about how parents of color have to talk to their children about what to do when stopped by the police. She and Justice Kagan in her dissent said that this is going to encourage police officers to illegally stop individuals knowing that, if they do so and discover an arrest warrant, any evidence gained will be admissible. I have now heard from officials in major police departments that police officers are doing exactly this. They know that there is not going to be any consequences for an illegal stop. They are not going to get civilly sued for an illegal stop. A person that is allowed to go is not going to bring a suit against the police officer for it. They are not going to face discipline for the illegal stop. And the officers also know that, if they discover an outstanding arrest warrant, they can do a search, and any evidence gained is going to be admissible. So the Supreme Court, in a single decision, has done an enormous amount to encourage police violations of the Fourth Amendment, most of all to encourage the police to illegally stop individuals, and that can then lead to great harm to the people that are stopped and sometimes to the police.

V. CONCLUSION

I realize that I have painted a fairly pessimistic picture. But it is important to remember that all of this can be changed. Cities can adopt better policies and disciplinary systems. In fact, of the Supreme Court cases that I have mentioned, almost all of them were 5-4 decisions. City of Los Angeles v. Lyons was a 5-4 decision. Recently there have been four justices who want to reconsider Monell. The absolute immunity decisions like Van de Kamp v. Goldstein were 5-4. The municipal liability decisions like