Outraged, but not surprised.
That would be a fair way to sum up the response of many to the grand jury's decision not to bring criminal charges against Ferguson, Missouri police officer Darren Wilson for killing Michael Brown. As protests continue across the nation, it is worth asking what, if anything, can be done to address the perception that citizens (and let us be frank -- especially black citizens) cannot expect help from the courts when police officers are accused of unjustifiably depriving them of their liberty, property or even their lives.
For that perception is justified. As law professor Erwin Chemerinsky explained in an important piece some months ago, the Supreme Court has made it very difficult to hold cops accountable for wrongdoing. But there is still room for engaged judges to ensure that badges cannot be used as a license to violate rights.
1.) Don't Rubber-Stamp Warrants
In his essential book on police militarization, Rise of the Warrior Cop, Radley Balko describes a 1984 study of the warrant process in seven US cities, conducted by the National Center of State Courts. The study revealed that magistrates spend an average of two minutes and forty-eight seconds reviewing affidavits -- sworn statements -- before approving warrants, and that "most police officers interviewed could not remember having a search warrant turned down." Often enough, it is a rubber-stamp process, not a thorough review. Given the consequences of signing off on a warrant -- including forced-entry raids that can destroy, deafen and kill -- judges have no excuse for failing to so much as ask questions of officers. In one particularly horrific recent case, a Georgia SWAT team threw a flash-bang grenade into a playpen, blowing a hole in the chest of a one-year-old child.
2.) Don't Take Cops at Their Word
Simply put, police officers lie in court, and they get away with it. Balko reports that in 1992, a University of Minnesota law professor sent a questionnaire to Chicago judges, prosecutors and defense attorneys. 92 percent of judges said that police lie "at least some of the time" when questioned about searches and seizures. In 2011, former San Francisco Police commissioner Peter Keane wrote an article in The San Francisco Chronicle in which he stated, "Police officer perjury in court to justify illegal dope searches is commonplace... it is the routine way of doing business in courtrooms everywhere in America."
3.) Make Prosecutors Obey the Rules
The Supreme Court has said that because prosecutors are representatives "of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all," their ultimate interest should not be in winning a case but ensuring "that justice shall be done." But they do not always fulfill their obligation to seek justice. In 2010, USA Today conducted a comprehensive study that surveyed federal criminal cases since 1998 and identified more than 200 cases in which courts threw out convictions or publicly rebuked prosecutors for misconduct. As former prosecutor turned private practitioner Sidney Powell recounts in her shattering book, Licensed to Lie, prosecutors do in fact deliberately withhold potentially exculpatory evidence that they are constitutionally required to disclose under the rule of Brady v. Maryland (1963). Judges should not assume that they will get complete and candid disclosure the first time they ask.
4.) Make Cops Pay When They Violate Our Rights
The judicially-invented doctrine of qualified immunity protects cops from paying out of their own pockets for their violations of citizens' constitutional rights -- so long as those rights are not "clearly established." There is no constitutional basis for this doctrine -- the Supreme Court made it up for the sake of making life easier for law enforcement. All too often, it is an excuse for judicial abdication, with "clearly established" being read extremely narrowly. But it does not completely insulate cops from liability.
In a recent case, the 11th Circuit held it was not reasonable for officers to believe that they could descend on a barbershop in tactical gear with guns drawn just to check barbers' licenses, without violating the (duly licensed) barbers' Fourth Amendment rights to be free from unreasonable searches and seizures. The court determined that the unconstitutionality of such actions was "clearly established" because the 11th Circuit had held not once but twice that conducting criminal raids under the pretext of an "administrative inspection" is constitutionally unreasonable -- and one case even involved the same sheriff's office that conducted the barbershop raid!
There is no quick-fix solution to the problems with our criminal justice system that Ferguson has thrown into sharp relief, nor is there a simple formula that judges can use to figure out whether the government is misleading them or not. But Americans expect and deserve a level playing field when they seek justice in our courts of law. And the security of our rights depends on judges carefully scrutinizing claims by those who, all too often, are less interested in justice than in seeking their own advancement and avoiding accountability for injustice.