The failure of the exclusionary rule

Many years ago the Supreme Court created the exclusionary rule in an attempt to discourage violations of constitutional rights. With the rise of car travel and the war on drugs, it’s clear the rule has failed. calls attention to a recent court decision.

Driving along I-40 Deputy Leonard R. Armijo glanced in his rear view mirror, saw a car a half mile behind him going uphill in the right lane, and saw a truck pass that car. He pulled over the car for going too slowly.

A federal judge ruled the traffic stop was a civil rights violation. You can’t stop a driver for the nonexistent crime of being passed. There was no minimum speed limit to violate, and being passed does not prove dangerously slow speed.

Accused of violating a man’s civil rights, Deputy Armijo testified under oath that he would “absolutely” do it again.

So is this thug with a badge going to prison? Of course not. It was just a civil rights violation. He was testifying at the trial of the man whose rights he violated.

Many judges would have allowed it, but this one did not. She suppressed the evidence from the illegal traffic stop. That ruling is as close to punishment as the system allows. To police officers, suppression is no punishment at all. To federal prosecutors, it adds to the few percent of cases that don’t end with convictions.

The theory was, punishment would come in the form of a civil rights lawsuit. Let’s see what happens when you sue for civil rights violations…

In 2009 Deputy Armijo pulled over a different driver. The driver’s wife, following in another car, pulled over in front of them. Deputy Armijo arrested the wife for interfering with a police officer. Charges were dropped. She sued. A federal judge decided since no court had ever explicitly told police officers not to arrest a wife for NMSA ยง30-22-1 based on her parking near her husband during a traffic stop, Deputy Armijo could not be liable for doing so.

The doctrine is called “qualified immunity.” Unless there is a published decision of a federal appeals court with substantially identical facts, police can argue “I had no idea that was wrong.” And win.

But they also win if they violate civil rights in exactly the same way, as Deputy Armijo swore he would do.

Last year I wrote about a Kansas police officer accused of violating drivers’ rights. Back in 1997 the Tenth Circuit Court of Appeals ruled that Officer Richard Jimerson’s enforcement practices violated drivers’ rights. He persisted, and in 2012 somebody finally sued. He was never really on trial. After the Tenth Circuit said he was wrong (again), the state paid $67,129 to settle the case.

The Christian Science Monitor wrote about a new breed of prosecutors who want to shake up the system by reversing their predecessors’ tough-on-crime policies. Want to shake up the system? Tell police to obey the law or go to prison.

The opinions expressed in this post belong to the author and do not necessarily represent those of the National Motorists Association or the NMA Foundation. This content is for informational purposes and is not intended as legal advice. No representations are made regarding the accuracy of this post or the included links.

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