08/07/2009

Ken WallentineLaw Enforcement and the Law
with Ken Wallentine

PoliceOne Analysis: Is Justice Sotomayor good for LE?

By and large, cops are politically conservative. So it is no surprise that some law enforcement officers are bemoaning the confirmation of Justice Sonia Sotomayor. But is the concern justified?

During the confirmation process, much was said about Justice Sotomayor’s roots. She’s the first Hispanic to sit on the Supreme Court. We were reminded of that time and time again with the media replays of the “wise Latina” comment. The child of Puerto Rican immigrants, she maintains her ethnic connections and pride. Her mother, a United States Army veteran, raised her alone after Sotomayor’s father’s death (when Justice Sotomayor was only nine years old). Sotomayor spent summers in the family’s home village in Puerto Rico. She grew up in financial poverty with a mom who worked two jobs, yet in a family abundantly wealthy with traditional American and family values.

Her critics in law enforcement would do well to consider her legal  roots. This girl from a single-parent family in the Bronx became an accomplished law student at Yale and Editor of the Yale Law Review. Her first job? In 1979, she was hired straight out of law school as a criminal prosecutor in the New York County District Attorney’s Office. Ask the cops whose cases she prosecuted where her sympathies lie. Ask the defendants to whom Judge Sotomayor gave prison sentences that significantly exceeded federal guidelines when their crimes were particularly heinous or they lied in court. Or ask Robert Morgenthau, the larger-than-life District Attorney who pushed hard for her confirmation. Those who saw Assistant District Attorney  Sonia Sotomayor working hard for justice have no doubt that Justice  Sonia Sotomayor will carefully consider the needs of law enforcement in the balancing act of judging on the Supreme Court.

Prosecutor Sotomayor successfully prosecuted child pornographers, gang bangers, and murderers. Judge Sotomayor issued a ruling that cleared the way for the first death penalty case in her judicial district in forty years. Judge Sotomayor upheld evidence in a child pornography case found during service of a defective warrant. She ruled that the judge that issued the warrant acted erroneously, but in good faith, and Judge Sotomayor did not stretch and reach to suppress evidence where other judges’ records proves that they might well have done so. Justice Sotomayor already has a track record of deciding tough criminal and public safety questions.

She’s been serving as a federal judge since 1992 when President George Bush appointed her. And now she takes the place of another Bush nominee, former-Justice David Souter, known for rarely siding with public safety needs in critical decisions. In the recent case of Arizona v. Gant, former-Justice Souter voted in favor of an upheaval of established law governing searches of vehicles incident to arrest. As a Court of Appeals judge in United States v. Howard, Justice Sotomayor reversed a district judge’s suppression of evidence stemming from a vehicle search. Though the cases were not identical, or even particularly similar, her record clearly shows that Justice Sotomayor takes a practical and balanced approach to judging law enforcement action under the Fourth Amendment.

Consider one case discussed during Justice Sotomayor’s confirmation involving a confrontation between a truck driver and an off-duty New York police officer. If one believes the trucker’s account, the officer refused to surrender use of a public pay phone despite the trucker’s insistence that he needed the phone for an emergency call. The trucker claimed that the officer pointed a gun at him. The trucker sued the officer.

A jury found the officer liable and awarded $600,000 in damages to the trucker. Judge Sotomayor sat with Chief Judge Walker and Judge Leval on the appellate panel that reviewed the case. Judge Sotomayor convinced her colleagues that the jury instructions were flawed and were biased against the officer. The appellate court reversed the case. The trucker pursued a new trial using the corrected jury instructions. The officer prevailed in the second trial. Although the officer was accused of egregious conduct and although it is unpopular to reverse a jury verdict, the issue for Judge Sotomayor was whether the police officer had been treated fairly by the judicial system.

Justice Sotomayor’s written decisions and oral comments during years of trials and appellate hearings demonstrate that she listens intently to the needs and concerns of the cop on the street. Her nomination was supported by many major law enforcement groups, including the National Sheriff's Association, National Association of Police Organizations, Fraternal Order of Police and the National Association of District Attorneys.

To be sure, not every decision that she made as a judge garnered the praise of law enforcement. But her job is not to be an advocate in the fight against crime — it is to be the umpire that ensures that the defense attorneys, prosecutors and cops play by the rules.

About the author

Ken Wallentine is Vice President and Senior Legal Advisor of Lexipol LLC (www.Lexipol.com), the nation’s leading provider of risk management policies and resources for public safety agencies. He is a retired chief and former prosecutor with over three decades of public service.

Contact Ken Wallentine

Back to previous page