Supreme Court creates a right without a remedy

By Lee Russ

Friday, June 16, 2006 at 06:21 PM

One of the oldest principles in law is that you cannot have a right without a remedy.  It's common sense: If I have the right to enroll in a state college, and the college refuses my enrollment, there must be a way for me to overturn the college's decision for the right to have any real meaning.

But yesterday the Supreme Court seemed to trample on that principle.

As reported in several sources, in Hudson vs. Michigan (case # 04-1360), the Supremes decided by a 5 to 4 vote (guess which side Alito was on) that although you have a constitutional right to have the police, when they are executing a search warrant, announce their presence and then wait a reasonable time for you to answer the door before they burst in, there is no real remedy for the police's violation of that obligation.  Specifically, the Court decided that there is no need to exclude any evidence the police come up with when they enter in violation of the "knowck and announce" rule.

The problem is that exclusion of the evidence has long been the incentive for police to comply with all the 4th Amendment-based rules, including the knock and announce.  Otherwise, all you can do is sue the police for violation of privacy and the like, and guess how realistic that is.  Some states immunize the police from suits like that. Even where the police can be sued, as the lawyer for the defendant explained to the Supreme Court during original oral arguments in the case:

Justice Scalia, that, as far as we can determine, no one wins a knock-and-announce case, or we haven't been able to find a single case in which someone has actually recovered damages for a knock-and-announce violation.

That, of course, did not really bother the majority of the Supreme Court.  And Justice Scalia's majority opinion engages in some very specious reasoning:

Scalia said much has changed since 1961, including the availability of new types of civil damage suits and increasing evidence that "police forces across the United States take the constitutional rights of citizens seriously," reducing the need to suppress evidence.

Well isn't that just disingenuous as hell.  The very reason that police forces took the constitutional rights of citizens seriously is that, until the court tilted sharply to the right, there was a very real threat that evidence would be excluded.  Now that the Supremes have enacted so many exceptions to the exclusionary rule that it has no teeth, the police no longer have the very incentive that led the court to create another exception.

As for the right to sue for damages, the defendant's lawyer said that no one has gotten more than $1 in token damages in the past 30 years.  Try to get a lawyer to even take your case when the highest expected judgment is $1.

Scalia may be great at luxury travel, questionable hand gestures, and hunting with his political cronies, but as a protector of basic civil rights, he's a total flop.

Maybe it's because he's...GASP!!!--a graduate of a foreign university?  According to his official bio, he "received his A.B. from Georgetown University and the University of Fribourg, Switzerland..."  You know what the far right thinks about those damn foreign countries, schools, and laws.

The good news is that the decision only applies to cases in which the police already have a valid search warrant.  The right to barge in without even bothering with a warrant is probably way down the line, a couple of years at least.