Thursday, June 11, 2020

Rethinking traffic stops

Whether you're a pedestrian stopped for walking in the street, a bicyclist stopped for riding on the sidewalk, or a driver stopped for anything from a busted taillight to speeding, traffic stops can be annoying. Or frightening. Or deadly.

Why does this keep happening?

Criminal law: the stinginess of the exclusionary rule

The exclusionary rule was designed to deter police misconduct during traffic stops and otherwise. It's a start. But it will never be enough, for a host of reasons, including the fact that the rule is defined by judges and justices who are far removed from the reality of the streets. See Hudson v. Michigan, 547 U.S. 586, 599 (2006) (expansion of exclusionary rule not necessary to deter violations of knock-and-announce rule because "we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously").

Civil law: qualified immunity

In Hudson, Justice Scalia cheerfully assured us that the exclusionary rule did not need to be expanded because, "[a]s far as we know, civil liability is an effective deterrent" to police misconduct. Id. at 598.

Earlier this week, the Fourth Circuit put the lie to that nonsense in a decision decrying how perverted the qualified-immunity doctrine has become:
Wayne Jones was killed just over one year before the Ferguson, Missouri shooting of Michael Brown would once again draw national scrutiny to police shootings of black people in the United States. Seven years later, we are asked to decide whether it was clearly established that five officers could not shoot a man 22 times as he lay motionless on the ground. Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives. Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis. This has to stop. To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept. The district court’s grant of summary judgment on qualified immunity grounds is reversed, and the dismissal of that claim is hereby vacated.
Estate of Jones by Jones v. City of Martinsburg, W. Va, ___ F.3d ___, 2020 WL 3067925 (4th Cir. June 9, 2020).

Rethinking the law: eliminate traffic enforcement

As dewy-eyed lawyers, we want to believe that the courts and the constitution can remedy police violence. But maybe it's time to think beyond the courtroom walls. Can safe streets and sidewalks be achieved without the intervention of armed, militarized agents of the state? Talk amongst yourselves. And check out these statements from the Minneapolis group Our Streets Minneapolis, and the national group Safe Routes Partnership.

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