Weirdly, Amy Coney Barrett’s Police-Accountability Record May Be Better Than RBG’s

October 15, 2020

On September 25, Amy Coney Barrett, a staunchly conservative judge for the Seventh Circuit Court of Appeals, was named as President Trump’s Supreme Court nominee, in the wake of Justice Ruth Bader Ginsburg’s death and the resulting vacancy.

That same day, the family of Breonna Taylor—a Black woman whose violent killing by police during a “no-knock” raid has become a flashpoint for the police reform and abolition movements—announced they would continue to pursue legal action over the failure to hold any officers accountable for her death.

Barrett’s track record of conservative views and rulings on LGBTQ rights, abortion, racist discrimination, sexual violence, and immigration has caused alarm among progressives. Perhaps surprisingly, it seems to be more promising on the issue of unjust police searches, like Taylor’s case, than that of her liberal potential predecessor. The stark contrast between Judge Barrett and Justice Ginsburg narrated by commentators may include police accountability—but not in the direction many progressives might assume.

Justice Ginsburg, over the course of over 25 years on the Court, played a hand in upholding and expanding the practice of no-knocks.

Despite her nomination by a far-right president and her career, Judge Barrett has authored at least two opinions in her mere three years as a judge that ruled against law enforcement’s unconstitutional searches. One case involved drug-trafficking allegations—a matter currently central to the Taylor-inspired national debate over police.

Meanwhile, Justice Ginsburg, over the course of over 25 years on the Court, played a hand in upholding and expanding the practice of no-knocks.

In 2019, Judge Barrett ruled on the case USA v. Terry, in which the defendant, Dimitris Terry, had been sentenced to 14 years in prison for a conviction of heroin possession and trafficking. Drug Enforcement Administration agents executed a search warrant of his home after a woman—not Terry himself nor a resident of the dwelling, but rather the mother of Terry’s child—consented to a search. The DEA officers hadn’t bothered to ask if she was authorized to consent on his behalf. Instead, they assumed she could because she was a woman wearing a bathrobe in a man’s home, with the inference being that she lived there.

Authoring the three-judge panel’s opinion, Judge Barrett squarely objected to their reasoning, finding that the unconstitutional search violated the Fourth Amendment. She ordered the suppression of the evidence implicating Terry in the drug offenses and vacated his conviction.

In contrast to Judge Barrett’s authorship of an opinion rejecting a drug-related search, Justice Ginsburg signed onto—though not penning—opinions that at worst upheld, in certain circumstances, the constitutionality of officers failing to knock and announce their presence when executing searches, and at best limited some loopholes related to the searches.

Two years after the feminist advocate was appointed to the Supreme Court by President Bill Clinton, Justice Ginsburg signed off on a unanimous opinion that created a broad exception for officers to shrug off the long-established “knock and announce” rule when a suspect—in this 1995 case, Wilson v. Arkansas, a woman charged with methamphetamine and cannabis delivery—was feared to be violent, had escaped custody or could destroy evidence.

The Washington Post‘s Radley Balko explained that officers seized on this loophole to claim that “all drug dealers are a threat to dispose of evidence, flee or assault the officers at the door.”

The Court, with Justice Ginsburg’s agreement, unanimously moved to update the no-knock exception in the 1997 narcotics search case, Richards v. Wisconsin, in which they clarified that lower courts must assess the specific circumstances of the entry to determine its validity, and that officers must have “reasonable suspicion” to conduct searches in such circumstances. As conservative legal commentator David French has noted, that’s “not a high bar to clear.”

A decade later, Justice Ginsburg did join Justice Stephen Breyer’s dissent to the conservative majority opinion in another narcotics search case, Hudson v. Michigan, that law enforcement can unconstitutionally violate the “knock and announce” requirement and the discovered evidence does not need to be suppressed—basically greenlighting cops’ illegal search practices. Justice Breyer warned that police, in light of the ruling, will “know that they can ignore the Constitution’s requirements without risking suppression of evidence discovered after an unreasonable entry.”

Judge Barrett has not heard a case specifically concerning no-knock search warrants, though she has ruled in favor of both people subjected to unconstitutional non-drug searches and unjust drug-related sentencing.

Her 2018 USA v. Watson opinion held that a local police officer did not have reasonable suspicion to stop a group of Black men in a Charger after what she deemed an unreliable tipster reported that some Black teens possessed guns.

In two different cases decided in 2019, Barrett authored opinions that ordered adjustments to drug-related sentences. In USA v. Atwood, she vacated defendant James Atwood’s 17-year sentence for drug convictions because the judge presiding over his sentencing failed to recuse himself, given his conflict of interest as a former prosecutor with the US Attorney’s Office pursuing the charges.

In USA v. Hagen, she ordered the exclusion of “permitting truancy” charges from a re-calculation of defendant Mandy Hagen’s “criminal history score” for a meth conspiracy conviction. Had Barrett allowed the charge’s inclusion in the calculation, Hagen would potentially have faced more severe sentencing.

Relative promise on a single issue does not make a good Supreme Court pick. But their records disrupt the dual narratives.

Despite Justice Ginsburg’s role in creating the no-knock case law that, years later, enabled the fatal raid on Breonna Taylor’s apartment, that doesn’t mean she actively pushed it. Rather, it reveals what legal commentators have noted to be her “mixed” approach to criminal injustice issues. In some more recent cases, like District of Columbia v. Wesby, she penned opinions in favor of police accountability, but such perspectives were not a consistent tendency for the Justice.

The jury is still out on how Judge Barrett would actually rule on the constitutionality of no-knock searches—and her apparent opposition to Miranda rights should be noted. Relative promise on a single issue does not make a good Supreme Court pick. But their records disrupt the dual narratives that Justice Ginsburg was a progressive par excellence, and that a Barrett confirmation would necessarily lead to uniformly disastrous results for issues specific to police accountability.


Photograph of Judge Amy Coney Barrett with President Donald Trump via the White House/Public Domain

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