This article will argue that Scalia‘s ―New Professionalism‖ thesis in Hudson was misconceived. Specifically, this article contends that worrisome levels of unaccountability currently exist in our nation‘s law enforcement institutions—enough to undermine Scalia‘s Hudson thesis. This article attempts to address the shortcomings of Scalia‘s ―New Professionalism‖ thesis, as they are important to understanding why internal discipline is insufficient to deter violations of constitutional rights by law enforcement officials.
Part I of this article will discuss statistical and anecdotal evidence that tends to disprove Scalia‘s ―New Professionalism‖ thesis. Part II will discuss how the professional relationship between prosecutors and police contributes to a lack of accountability in law enforcement institutions. Part III will discuss three areas of law where legal rules have given law enforcement officials extraordinary protection from liability for official misconduct. Specifically, Part III will discuss first how the U.S. Supreme Court‘s Fourth Amendment jurisprudence has expanded the zone of police conduct that is constitutionally permissible. Second, Part III will discuss how the Supreme Court‘s jurisprudence has helped shield law enforcement officials from civil liability by expanding the scope of Qualified Immunity. Third, Part III will discuss how the adoption of overzealous Assault on a Police Officer (APO) statutes have created incentives that allow misbehaving law enforcement officials to violate citizens‘ rights with impunity under the guise of criminal investigation. Lastly, Part IV will discuss potential paths for reform that will strengthen accountability of our law enforcement institutions in the wake of Hudson v. Michigan.