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Abstract

Constitutional rights pivot on problems of proof. But traditional academic distinctions between “procedural” rules of evidence and “substantive” questions of constitutional law impede our understanding of how law works. In particular, how law works to identify, constrain, and remedy police abuse of constitutional rights. Treating rights and remedies as abstract concepts ignores the fact that the exclusionary rule functions as a rule of evidence. In theory, remedies are the life force of rights. In practice, constitutional violations are currently remediable only if a defendant can prove that he suffered intentional police abuse or prove that a police officer knew but ignored constitutional constraints. The problem of proving that police officers act with demonstrably culpable intent is also at the core of the Black Lives Matter cases. The growing number of acquittals and grand jury non-indictments following the police-custody and police-seizure deaths of Michael Brown, Eric Garner, Freddie Gray, Tamir Rice, and other victims of police violence reveals that judges and juries refuse to believe that police officers are culpable lawbreakers. Preventing and resolving these cases may be further complicated by a “Ferguson Effect,” causing public distrust of police and police fear and disinterest especially in minority urban communities. The long-term implications of these new developments on national and local strategies for policing the police are manifold and uncertain. The short-term lessons are clear and should be obvious. Over the past decade, the Roberts Court has expanded police authority and reduced Fourth Amendment protections against unreasonable police abuse by repeatedly refusing to recognize police aggression as remediable. In each new case, most recently in Utah v. Strieff, the defendant seeking to suppress even obviously illegally-seized evidence faces the insurmountable burden of proving the police officers acted intentionally, recklessly, or with gross negligence under the Roberts Court’s increasingly stringent “flagrant police abuse standard.” The flagrant police abuse suppression standard hypothesizes the possibility that the average criminal defendant could gather proof sufficient to convince a judge that a police officer acted: (1) illegally and (2) with the necessary mentally culpability. But each new Fourth Amendment decision from the Court ignores the reality repeatedly uncovered in the Black Lives Matter cases. If, as the Black Lives Matter cases prove, prosecutors’ offices with their resources, access, and institutional police connections cannot prove that officers break the law, what hope is there for the average criminal defendant? The exclusionary rule celebrated its centenary just three years ago. But Strieff is the latest example of the Court’s dangerous new Fourth Amendment jurisprudence that incentivizes aggressive policing (including suspicion-less police seizures), ignores obvious obstacles to defense proof of police wrongdoing, and invites prosecutors to feast on the illegal fruit of police abuse of fundamental rights.

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