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Joelle Anne Moreno. Flagrant Police Abuse: Why Black Lives (Also) Matter to the Fourth Amendment. 21 Berkeley Journal of Criminal Law 36 (Fall, 2016) (183 Footnotes Omitted) (FULL ARTICLE)


JoelleAnneMorenoPrior to ratification of the Constitution, Alexander Hamilton recognized the centrality of search and seizure protections. Thomas Jefferson and John Adams similarly opined that colonists' anger and fear over unreasonable searches and seizures catalyzed the American Revolution. Over two centuries later, the Roberts Court began its approbation of illegal investigatory tactics through the creation of a new flagrant police abuse standard in Herring v. United States. Interestingly, it was the deliberate decision to place the word "flagrant" at the fulcrum of its new suppression standard that enabled justices, who routinely use language to change law, to begin to use law to change language.

Flagrant, derived from the Medieval Latin flagrantem, originally meant "ablaze." In virtually every other context, flagrant continues to mean both "obvious" and "intentional." Only in the Roberts Court's contemporary Fourth Amendment jurisprudence has the definition of flagrant been truncated and the word used solely as a synonym for intentional.

Starting with Herring, the Court redefined flagrant as deliberate law breaking, although a mens rea of recklessness or gross negligence could also suffice. The Court recently reaffirmed these stringent suppression requirements. In Strieff, the Court held that even a concededly illegal suspicion-less seizure is not flagrant, for suppression purposes, because, "[f]or the violation to be flagrant, more severe police misconduct is required than the mere absence of proper cause for the seizure." Strieff builds on the Herring Court's conclusion that "suppression is not an automatic consequence of a Fourth Amendment violation" by clarifying that evidence of an obvious and apparent police abuse of rights is insufficient. Since Herring, the Court has justified the requirement of defense proof of police mental state with the opaque argument that "the [suppression] question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct." However, the argument that behavior modification is more efficacious when the conduct one seeks to deter is more intentional is empirically unsupported and contrary to common sense, everyday experience, and the entire body of torts law. The Court's recent shift from flagrant as obvious to flagrant as intentional has escaped the attention of legal commentators, despite three profound effects of this "bait and switch" on law and practice. First, it covertly and dramatically increases the quantum of defense suppression proof. In the pre-Herring past, defendants could establish that a search or seizure was obviously illegal using the type of evidence typically available to them, their own eyewitness account of what police officers did and said. But because police officers rarely announce that they intend to break or disregard the law, defendants' eyewitness testimony will be either insufficient or, as the Black Lives Matter cases repeatedly demonstrate, unpersuasive. Second, it rejects relevant precedent. The flagrant police abuse standard as understood and applied by the current Court requires judges to delve into the minds of individual officers, an inquiry inconsistent with the Court's longstanding view that police officers' "[s]ubjective intentions play no role in ordinary ... Fourth Amendment analysis." Third, it ignores reality. The Court's exclusionary jurisprudence rests on speculations about hypothetical suppression hearings that bear little resemblance to real world courts. As noted above, the consistent pattern of acquittals and grand jury non-indictments in the Black Lives Matter cases demonstrate that judges and juries are overwhelmingly reluctant to hold police officers mentally accountable for their aggressive, violent, or deadly conduct, even in the face of videotaped evidence. Strieff arrives at a time when the challenges of policing and of policing the police have entered a new period of crisis. The "Ferguson Effect," which the criminologist Richard Rosenfeld described in his June 14, 2016 report for the U.S. Department of Justice, attributes a recent increase in homicides to a loss of trust in the police, especially in urban and racial and ethnic minority communities. Discussions of the existence or extent of any Ferguson Effect frequently include controversial causal speculations and allocation of blame to police departments and/or protesters. Putting aside questions of causation and responsibility that currently have no clear answer, Professor Rosenfeld's Justice Department report provides new and reliable evidence that recent unchecked public-police fear can have violent and even deadly consequences.

These problems should be apparent to members of the Supreme Court whose decisions are not made in a media vacuum. Decisions about Fourth Amendment rights and remedies are not theoretical or abstract. In fact, the justices have long acknowledged the impact of their decisions on policing because, without constitutional constraints, for police officers who " engage[] in the often competitive enterprise of ferreting out crime,' [it] raises the temptation to cut constitutional corners." Ultimately, it is police organizations that must respond to incentives and deterrents through training and internal controls, which makes the Court's repeated focus on individual officers confusing and counter-productive. Some knowledge of real-world policing clarifies the socio-normative jurisprudential obligations on the Court to anticipate, prevent, condemn, and remedy illegal police abuse of constitutionally protected rights.

On the current Court, Justice Sotomayor increasingly speaks truth to power by interjecting real-world policing problems, expressing concern for targeted populations, and seeking to preserve judicial integrity. In this role and context, Justice Sotomayor appears to be an intellectual heir to Justice Louis D. Brandeis who famously argued that the social and political role of the Court is to lead and teach by moral example.

In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. Justice Sotomayor aligned herself with Justice Brandeis when she warned of similar risks in her Strieff dissent:

We must not pretend that the countless people who are routinely targeted by police are "isolated." They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. When Justice Sotomayor wrote "no one can breathe," she repeated Eric Garner's dying words which have become a rallying cry for the "Black Lives Matter" movement. Her powerful call to arms is a grim reminder that victims of violent or deadly police abuse are disproportionately young minority men. As Justice Sotomayor is undoubtedly aware, litigation resulting from New York City's stop-and-frisk program has recently substantiated (with extensive empirical evidence) the fact that minority groups are also disproportionally targeted for less intrusive interference with constitutional liberties. But Justice Sotomayor's warnings are aimed at a Court that is apparently immune to appeals to racial, ethnic, and social justice. A Court impervious to, if not complicit in, the police illegality it repeatedly condones by effectively ignoring police illegality and aggression by making blatant police abuse virtually irremediable. The exclusionary remedy, created over 100 years ago, once symbolized our moral commitment to lawful police investigations that respected privacy, property, and basic human dignity. By 1961, when Mapp v. Ohio was decided, exclusion was considered a vital component of our Fourth Amendment protections, if not a constitutional command. Over the past half century, exclusion has lost its constitutional luster. Today the remedy is reserved only for defendants who can prove "police conduct ... sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." The text of the Fourth Amendment remains unchanged. But over time, irremediable rights become ephemeral. By severely restricting access to exclusion, the Court has changed the nature and scope of constitutional protections. This concern transcends defendants confronted with illegally seized evidence at trial or during plea negotiations. It affects everyone who blithely assumes that the Bill of Rights protects against unlawful privacy intrusions and aggressive and illegal police abuse.

This article links the evolving suppression doctrine to the recent Black Lives matter cases to demonstrate the interrelationship between the Roberts Court's jurisprudence and contemporary challenges that face anyone seeking to prove police culpability. Part I explores the constitutional evolution of the flagrant police abuse suppression standard including its most recent application to a concededly illegal seizure in Utah v. Strieff. Part II examines the problem of proving flagrant police abuse by contemplating the lessons of the Black Lives Matter cases. Part III critically evaluates recent efforts by the Roberts Court to map its increasingly stringent general suppression jurisprudence onto the preexisting, distinct, and more particularized doctrine of attenuation. Part IV locates this analysis within a more global understanding of the social, normative, and educational role of the Supreme Court as articulated nearly a century ago in the personal jurisprudence of Justices Brandeis and echoed today in decisions by Justice Sotomayor. The article concludes by denouncing our legal academic tradition of elevating explorations of theory at the cost of practice analysis. In virtually every area of inquiry, this is an artificial, unhelpful, and distracting divide. In the context of constitutional rights and remedies, theory arguments must incorporate an understanding of real police practices, evidentiary burdens, and the dangers to judicial integrity, social justice, and personal privacy. When theory and practice are properly integrated, evidence of police officer acquittals and non-indictments reveal flaws that should be fatal to the current Court's theoretical speculations about the nature and operation of Fourth Amendment guarantees. Especially in this context, theory is epistemic only when it aids, illuminates, or organizes thinking; but theory repeatedly contradicted by actual evidence is prattle, philosophy, or politics.


Associate Dean for Research & Professor of Law, Florida International University College of Law.


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