Federal Judges Like Scalia Think Imagination Is Evidence

In Hudson v. Michigan, Antonin Scalia wrote of police violating rights without probable cause “it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect”. Scalia also wrote “the social costs of applying the exclusionary rule to knock-and-announce violations are considerable; the incentive to such violations is minimal to begin with, and the extant deterrences against them are substantial”.

Did German Nazi police not have incentives to violate rights? Between Americans and Germans, whose genes are the standard versus subhuman ones, or is there no difference? The deterrent effect, is deterrent to publication and scrutiny of the lies and rights violations by outsiders.

Scalia assumed some deterrent to violating constitutional rights manifests outside the courts, in social forces; perhaps percolating up from diligent scrutiny of public records, through human morals and impulses, to public approval to elections to discipline of police. Scalia wrote this without any hard evidence of what “the people” actually want or do, meaning the social forces. Voters view pressing witches and gassing Jews as social benefits. Voters are born with an impulse to cull their neighbors who compete for land resources, greater than any impulse to build shelters or bake bread or read public records.

If Scalia had looked at the actual history of what social forces produce, he would have realized why he had a job and what job he was given to do: To stand as a defense against social dynamics. Or else as Madison said, people subjected to the political will of the majority faction would have no more rights than animals in the wild. Because outside courts, the social dynamics of crowds do not operate constrained to judicial rights or truth, but as packs of lying wolves and gullible sheep.

Social forces have produced witch trials, lynchings, and the Nazi Holocaust. It is specifically because social forces do not provide due process, that we have courts. If voters electing the sheriff provides deterrence to police lying in search warrant affidavits, then why not just let voters grab people in the street?

If the majority mob is not allowed to simply grab criminals in the street, there is no reason to believe based on imagination, that elected sheriffs will discipline police who lie to obtain the same popular outcomes using the color of courts. There is no reason to imagine police don’t lie so that they can get elected by giving the public mob what they want, and which lynching is otherwise forbidden to the voters by the courts and laws.

Also in Hudson v. Michigan, Scalia wrote that it is “proper to assume that unlawful police behavior would be dealt with appropriately by the authorities”. This ignores Fourteenth Amendment Section 1, which was written because it was assumed that local authorities would evade complying with federal rights, using every subversion and subterfuge available while complying under superficial “color”. But Scalia, like an overgrown child or academic leftist, imagined human nature had been repealed since the Fourteenth Amendment was written. Scalia imagined and assumed for all time that “Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces”.

So the Constitution is obsolete, because man has improved; police are more professional, and voters protect rights of minorities. LOL. The Constitution was made under the assumption that executive branch officers will always be political and corrupted, and the public will always ignore the restraints of the Constitution, unless courts force those restraints on them. One scarcely even needs to examine actual behavior of police, to assume that local elected officials will cover up lies by members of their faction.

The hard documented fact is that state witnesses are never prosecuted when caught lying, whether dangerous felons coerced to swear others confessed, or police who lie in affidavits. And lawyers are pressured to talk their clients into plea bargains, to prevent evidence or proof of police lying making it into the public view. And news publishers are immunized to spread government-approved narratives for free, to reinforce the public theater that lies are true. Whereas publishers get cut off from the pipeline of free content, if they actually critically examine police.

Far from disciplining cops for lying to evade courts and serve social popularity over law, everything is done in the local system to enable police to lie, to give the local citizen majority a theater of what they want. Everything is done by local officials to conceal and insulate those lies from the record and examination by federal courts. It is necessary for police to lie and to hide those lies under a facade of due process, for sheriffs and prosecutors to get elected.

If the moral disposition of local elected officials was identical to the laws enforced by federal courts, we would not need federal courts.

In Herring v. United States, Justice John Roberts wrote that the only point of excluding evidence obtained illegally is to deter police violating rights, saying “the exclusionary rule is not an individual right and applies only where it results in appreciable deterrence.”

Roberts also noted that the point is not to deter good-faith supposed (plausible) “accidents”, but systemic standardized policies and practices of violating rights. Roberts wrote “it would not be reasonable for the police to rely… on a recordkeeping system… that routinely leads to false arrests”, and “When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error… the exclusionary rule does not apply.”

Not prosecuting police when they are caught lying, so that they face all reward and no penalty for lying, is a systemic policy and practice. (Even though police lying is always blamed on inanimate accidents, bad science, or malfunctioning witch-pricking devices.)

Roberts admits he does not expect the executive branch will punish police for lying, when he considers the judicial branch excluding evidence is the supposed “deterrent”. Why does the judicial branch need to deter police lying, if voters don’t like it and it is against local laws? Roberts implicitly admitted there is a systemic political incentive for police violating rights, and a systemic lack of deterrent in the executive branch, which necessitates such deterrent by courts.

Nowhere did Roberts produce any scientific evidence that courts excluding evidence deters police from lying. As if they care! This is founded on the false underlying assumption that local officials are “honorable”.

Police pay little personal cost for a defendant who goes free. Police can blame it on the courts not their own violations of law, by saying “he was let go based on a technicality”, and win even more power for themselves and the executive branch. They say this scumbag going free, is why we need to hire more cops!

It has never made sense to me, how a court letting two criminals go free – the cop who lied and the defendant – will cause cops to follow the law more in the future. Rather, both criminals should be punished, the criminal caught with evidence, and the cop who lied and violated his rights. Prosecuting perjury is supposed to be the deterrent for police lying. Letting criminals go free just makes the public hate courts, and makes the public support police lying in court, to evade regulation by courts and give the public what they want.

Police lying is a free gamble where they win either way. If the cop is not caught, he produces an outcome he expects to be rewarded for. If the cop is caught and the evidence is excluded and the defendant walks free, the cop blames courts for letting the guilty go free. The cop tells the public that the defendant going free proves courts don’t work, and this is why we need to subvert courts. The cop thereby uses the evidence exclusion, to win voter support for cops using lies and hiding them from the courts.

If the cop is caught lying about an unpopular undesirable from the minority faction, the public supports him. The public says this zealous cop is doing a good job doing whatever it takes, to get these scumbags off the streets. The public wants to torture scumbags not protect rights, which is why we have courts.

When the defendant goes free to deter the cop, the cop just wins public support to lie about that defendant the next day and frame him with a fake case, to achieve some sort of popular justice. Nullification of prosecutions by jurors, and by courts freeing criminals, encourages rather than deters police lying, by encouraging public support for police lying to subvert courts and juries. The public believes that whoever police tell them is guilty, is guilty. And courts which disagree are the problem.

But if you allow a religion to take hold among academics and judges who have lived insular lives – people who have never been arrested or lied about by cops – you imagine some fake utopia where cops don’t lie and the public mob protects rights. John Roberts should be chased all over Europe and have his family members burned alive, by a crowd of upstanding moral citizens who disapprove of his religion.

Another example of courts relying on their imagination, or on assumptions about the world as it exists at a fleeting place in time, is in Imbler v. Pachtman. Justice Lewis Powell wrote that letting people sue prosecutors “would often prejudice criminal defendants by skewing post-conviction judicial decisions that should be made with the sole purpose of insuring justice”.

Nowhere did Powell present an example of a specific judge who sent an innocent person to die, to protect a prosecutor from inconvenience. Powell did not say this problem was demonstrated by empirical evidence and rigorous statistical examination. Rather this was a “consideration”, meaning something he imagined. Therefore we must examine the reality of political influences of judges in a place and time, and actual evidence from that place and time, to determine whether Imbler is valid for the particular or present place and time.

In U.S. v. Bernal Obeso, Justice Stephen Trott wrote “we have chosen to rely on the integrity of government agents and prosecutors not to introduce untrustworthy evidence into the system”. This seems to create a cause of action to introduce empirical evidence from a real place and time, when government agents in a particular county of Florida regularly introduce untrustworthy evidence.

In Murthy v. Missouri, judges imagined what it must be like to work as a government agent or inside an IT service host, and imagined what incentives such people would face. Judges imagined such things freely without ever working as a government agent or website promoter, and without inviting a statistical sample of free-speaking witnesses who currently worked in such occupations, to ground the judges’ imagination.

So the imagination of judges about what it might be like to work for a web site, was used as evidence in support of their decision. Having worked inside IT service companies, I can tell you no lawyer has yet correctly imagined the incentives, in the form of the cost savings such companies enjoy by encouraging free labor and free information from government employees, in a quid pro quo.

Antonin Scalia never worked as a cop, and was never arrested and lied about. Scalia spoke frequently about the professionalism of police forces, and the deterrent functioning of Brady processes. He did so without any rigorous statistical examination of Brady processes across the country at that time.

And Scalia published a permanent opinion, certainly without requiring a regular examination of actual local processes to make sure his musings were still accurate, or were ever accurate. States don’t compel reporting, much less publish central records of police lying, specifically so judges like Scalia can live in fantasyland. And the law is immune to reality.

There is no reason to assume like Scalia did, that internal discipline will occur when a cop lies to deprive an unpopular person, and when his lying helps local elected officials look good and get elected. Prosecuting police lying, and making a Brady record of it, would undermine the generous assumptions local officials are given by idiot federal judges like Scalia. Why would they do that?

Why interrupt the imagination of federal judges with a record of reality? Scalia’s assumptions rather encourage voters and elected officials to hide police lying from the public record. This preserves state selection and voter approval of testimony as “indicia of reliability”, in the vain and self-important minds of pie-in-the-sky federal judges.

Federal courts rely on assumptions and musings, not hard scientific studies. This creates a cause of action, when we experience that reality does not conform to the assumptions judges have imagined, and which their opinions rely on. Applying such opinions in the present day, requires federal courts examine such assumptions against the hard evidence of the day.

Scalia forces us to empirically measure the “professionalism” of police in different places and at frequent intervals. Other musings by judges, force us to examine whether voters do or do not hold police or judges “accountable” to some imagined good behavior. We cannot assume the integrity of elected prosecutors and judges, or that voters protect rights. Rather we must regularly examine whether they do, or whether previous justices have made incorrect and silly or insular utopian academic assumptions, about human nature in their opinions.