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Supreme Court Justice Antonin Scalia at a conference in 2006.

Policing After Scalia

He thought the Fourth Amendment protected property, not people.

The justice confirmed to replace Antonin Scalia will have a profound impact on the direction of the Supreme Court on many critical social and cultural issues of our time; abortion rights, voting rights, affirmative action, and the protection of the environment, to name just a few. She or he will also have the opportunity to influence the struggle for police accountability and to determine whether and to what extent those who suffer from police abuse can get justice.

Since the liberal Warren court gave way to the conservative Burger court four decades ago the justices have increasingly read the Constitution as a broad shield for police officers accused of misconduct rather than as a shield protecting individuals harmed by the police. Through its decisions from the Rehnquist court forward, especially, the court has placed beyond judicial review much of the police conduct that has damaged communities of color. The court is, in part, responsible for the crisis in policing that is plaguing the Nation. Justice Scalia, who buttressed what Chief Justices Warren Burger and William Rehnquist had started in this area of the law, surely deserves his share of the blame as well.

In many tributes since his death, Justice Scalia has been described as an unlikely champion of the Fourth Amendment. This is true– but only to a certain point. During his nearly 30 years on the court, Justice Scalia wrote several landmark decisions protecting the rights of individuals from police intrusion on their property. For example, Justice Scalia wrote for a majority in Kyllo v. United States which held that when police aimed heat imaging technology at a home to determine whether the occupant was using grow lights for marijuana it constituted a search requiring a warrant.

Similarly, in Florida v. Jardines, Justice Scalia, again writing for the majority, argued vigorously that police conducted an unjustified warrantless search by bringing a drug-detecting dog to the doorstep of a house to sniff for marijuana. In United States v. Jones, in 2012, Scalia held that the attachment of a GPS device to a car by police was a search that required a warrant because the government “physically occupied private property for the purpose of obtaining information.”

However, Justice Scalia’s concern for individual rights protected by the Fourth Amendment seemed to end at the property line; as he noted in Jones, “the Fourth Amendment reflects its close connection to property … [and is] tied to common-law trespass.” By contrast, in cases interpreting protections against excessive force and racial profiling, his Fourth Amendment views tilted heavily towards granting police broad powers and against individual liberty.

In his last 26 years on the court, Justice Scalia sided with the police in every excessive force case that came before the justices. Time and again, these decisions narrowed the scope of police conduct that could be considered an unconstitutional intrusion on a person’s rights to life and liberty. In recent years, for example, he joined the majority in San Francisco v. Sheehan that found permissible the shooting by police of a mentally ill woman who was alone in her room when the police were called to take her to a hospital because she had stopped eating and taking her medication. He joined the majority opinion in Plumhoff v. Rickard , which upheld shooting at a car that was driving away from police after a high speed chase when the car had been originally stopped for a broken light.

Justice Scalia’s opinion in California v. Hodari, not only departed from 25 years of precedent, but underscored his views that the Fourth Amendment protects property, not people. In Hodari, police undertook a chase of a young man despite the fact that there was no probable cause to arrest him. Boxed in by police, and a moment before being tackled, he discarded drugs that were later recovered. Despite the fact that the defendant was clearly under police control at the time, Judge Scalia reasoned that the defendant was not under arrest, and thus the evidence was not the produce of an illegal arrest. Prior cases had made clear that an arrest occurred as soon as police displayed force and a reasonable person understood that they were not free to leave. The Hodari opinion thus allows police to use force and collect evidence in some circumstances while avoiding the constitutional requirement that they have probable cause.

Even the inability of many courts to address racial claims of unlawful arrests for “driving while black” also can be traced to an opinion written by Justice Scalia and endorsed by the rest of the court. Whren v. United States gives police nearly unchecked powers to determine who to pull over and when. Scalia’s opinion allows police officers to justify a stop on almost any pretext, even if the real reason that the officer seeks to stop the car is not justified by law. The record before the court demonstrated that an officer, given time to observe, could find a basis to stop virtually any car. Nevertheless, Justice Scalia rejected a more subjective standard that would look beyond the officer’s stated reason for the stop. The result is that racial bias, in many cases, cannot be challenged.

Moreover, Justice Scalia also was the architect of procedural mechanisms designed to prevent review of police misconduct. In a series of opinions of a closely-divided court, he helped extend doctrines of immunity so that even if a police officer were found to have used unconstitutionally excessive force that officer would not be held liable– would not be punished in a way likely to prevent future cases of misconduct. In Ashcroft v. Al-Kidd, for example, a decision with four separate opinions and only four justices joining with Scalia on the critical question, he limited the ability of victims of unconstitutional conduct to seek redress unless the circumstances were “beyond debate . . . with a robust consensus of cases of persuasive authority.” Minor factual difference between one case and the next could be used to let an officer off the hook and deny the victim justice.

There are many reasons why so many poor people and people of color mistrust the police. The failure of the judiciary (at every level, from trial judges to appellate courts) to forcefully hold police accountable is but one such reason. That failure has been encouraged for decades now by both the Rehnquist court and the Roberts court, thanks in large part to the jurisprudence and personality and intellectual force of the late Justice Antonin Scalia. Anyone who cares about police accountability should care a great deal about who replaces Justice Scalia– and when.

Jonathan M. Smith, chief of the Special Litigation Section of the Civil Rights Division of the Justice Department during the Obama Administration, is Associate Dean of Clinical and Experiential Programs at the UDC David A. Clarke School of Law.