By Robert L. Kelly
Your article on the recent "knock-and-announce" Supreme Court decision (June 16) gets it right, but your headline, "Court says it's legal for police to barge in," is dead wrong. A better headline would be "Justice Scalia's judicial activism."
Precedents in all states had required that, prior to executing a search warrant, police had to knock, announce themselves as police, and wait a reasonable time for a response before forcibly entering.
If they did not "knock-and-announce," whatever evidence of criminal activity they might find could not be admitted in a trial. This principle was based on the Fourth Amendment to the Constitution, forbidding unlawful search and seizures.
In the case in question, the court ruled it is indeed illegal for the police to enter without these preliminaries, but doing so does not invalidate evidence the police might discover. Some legal remedy against the unlawful entry could be used other than throwing the evidence out of court.
Surprisingly, Justice Scalia, in writing the majority opinion, based his decision not on the principle he famously avows, "strict construction" of the Constitution and precedents based on it, but rather on balancing societal costs of "knock-and-announce" restraints on police against their societal benefits.
Such an approach to legal decisions goes back to a tradition that emerged from 19th century American Pragmatic philosophy. Most notably espoused by Justice Oliver Wendell Holmes, it was called "social jurisprudence," "legal empiricism" or "legal realism."
Recently, this principle has been demonized by the American right wing as "judicial activism."
Right-wing pundits, including Rush Limbaugh, are quick to condemn as "activist" any judge who rules in a way they don't like — in cases such as prayer in schools, posting the Ten Commandments in public places or gay marriage. Judges so labeled are harassed and threatened with recall.
I'm waiting for the right to denounce Scalia's decision. Or is activism OK when its aim is to expand policing powers regardless of the Bill of Rights?
The writer lives in Greensboro.