200. More is less

In 2005, the Utah Supreme Court - that hotbed of liberal activism - decided a case in which police officers, responding at 3:00 a.m. to a report of an extremely loud party, saw a fistfight in progress through the window.  As Justice Matthew Durrant, who looks like he's about to turn 30, framed it, the issue raised by the case was

whether police officers who personally witness an ongoing physical altercation in a residence may enter that residence in order to prevent bodily harm, or whether those officers must remain rooted onlookers, waiting passively for violence to escalate to a point at which severe harm is likely to occur.

From the way he phrased it, you can guess how he would have voted, but he was voted down.  The U.S. Supreme Court reversed, but Justice Stevens wrote separately to characterize the case as "an odd flyspeck" - as if the Supreme Court didn't "play it safe," in Lisa Kloppenberg's formulation, by ducking most of the significant cases presented to it.  Stevens' remark also reveals the justices' attitude toward the ordinary practice of judging cases.  (In case you need reminding, here's a definition of "flyspeck.")

But what's particularly interesting about Stevens' crotchety little concurrence is his remark that "the Utah Constitution provides greater protection to the privacy of the home than does the Fourth Amendment." 

(Stevens went on to predict that the Utah Supreme Court would duplicate its prior result on the basis of the Utah Constitution - even though the Utah court devoted five paragraphs of its prior opinion [paragraphs 10-14] to lamenting the fact that the issue was not presented to it under the state Constitution.  When you're a member of the United States Supreme Court, you have no obligation to be honest with your readers.)

Judges are extremely susceptible to fads, and one such fad making the rounds is the interpretation of state constitutions to provide "more protection" or "greater protection" than the federal Constitution.  Assigning new meanings to the state constitution might be compared to Yu-Gi-Oh, a mature but still strong franchise, while school funding formulas, a prior fad that has just about run its course, is more like Pokemon.  (This is not to denigrate Yu-Gi-Oh and Pokemon, which demand a great deal of intellectual effort - ask your kid to explain them.)

To take examples from the past few months, here are cases from states with notoriously liberal political climates talking about the  "greater protection" afforded by their state constitutions:  Texas, Wyoming, Montana, Utah, Ohio and Indiana.

But what does "protection" mean?  The dictionary definition of the noun form begs the question by utilizing the verb form, which in turn is defined as "To keep from being damaged, attacked, stolen, or injured; guard. See synonyms at defend."  So the cases must be talking about keeping something from being damaged, attacked, stolen, or injured.  By whom?  Who is the would-be damager, attacker, thief or injurer?

Two of the linked cases address nude dancing and unguarded remarks to police officers (another kind of nakedness, I suppose).  But usually when state courts talk about "more protection" they're talking about searches and seizures, that is, about cops barging into a judge's five-bedroom home in a nice quiet neighborhood.  (I know none of the cases actually involve a judge's home, and very few involve five-bedroom houses, but that's what the judges are thinking and writing about.)  So, it would seem, the state constitutions offer more protection against the cops, those damagers, attackers, thieves and injurers of the constitutional right to privacy. 

Except, of course, that the cases themselves offer no protection at all against the cops.

After all, the cops' intrusion is ancient history by the time the case gets in front of an appellate court.  Your complacent assumption that you could have a fistfight in front of your lighted window without interruption has long since been shattered.  Back in the 1880s in southwestern New Mexico, the Silver City Enterprise once jeered that the cavalry arrived at the scene of an Apache outrage, as usual, in time to bury the bodies.   State appellate courts protect their citizens from the cops in the same way.

There have been a surprising number of rationales for the exclusionary rule, from the U.S. Supremes' deterrence rationale to the euphemistically-phrased position of some state courts that getting away with crime is a remedy intended to compensate the victim of a constitutional tort, just as money does in civil rights cases.  (Example:  "the purpose of the exclusionary rule is not to deter or ensure judicial integrity, but to 'effectuate in the pending case the constitutional right of the accused to be free from unreasonable search and seizure.'")

But whether the purpose is to deter cops from doing something bad in the future, or to make judges feel good about themselves ("judicial integrity"), or to take the place of money damages, or because the fourth amendment is a sub-section of the fifth (that's what the U.S. Supremes originally ruled), or just because the Court is composed of a bunch of social Darwinists who despise the thought of government regulation of business (as here and here) - whatever the rationale, it doesn't actually stop bad officers from doing bad things to you. 

In a classic Chas. Addams cartoon, a patent attorney is aiming a strange-looking device out of his window.  With a mildly irritated expression he glances over his shoulder at the bearded inventor: "Death-ray, fiddlesticks!  Why, it doesn't even slow them up."  I say: More protection, fiddlesticks!  Why, reinterpreting the state constitution has never stopped any testosterone-addled insecure bully with a badge from beating, raping, sexually tormenting, harassing or racially profiling anyone!  (It does, however, give bad cops another incentive to lie in court.)

No, if these appellate decisions offer us any protection at all from bad cops, it's in the long run.  After 45 years, I'd say the very long run.   But those decisions do offer a more immediate type of protection, as well.  In the immediate, concrete sense, they protect the accused from having their cases decided by fully-informed jurors.  So there's one type of "more protection": from reality.  The law school subject called "Evidence" consists almost exclusively of the study of types of relevant information kept from juries, and the non-textual exclusionary rules are simply ways of widening the gap between the real world and the courtroom version.

That, in turn, means that the jurors' decision is less likely to be accurate - which is just another way of saying that more guilty people will be found not guilty, or have charges dropped before trial.  I don't think anyone would dispute that that's the practical effect of "more protection."  So when you get right down to it, what all these state courts are promising is more protection from the law.