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Friday, June 17, 2011

Constitutional remedies

Yesterday's SCOTUS decision in Davis v. United States marks another gap between constitutional rights and constitutional remedies. The Court held that the exclusionary rule did not apply in a Fourth Amendment case where police acted consistent with binding precedent clearly making their conduct lawful at the time of the search, even if a subsequent retroactive change in the law rendered the search unlawful by the time of a decision in the criminal case.

The exclusionary rule has become the counterweight to damages under § 1983/Bivens as the remedy for constitutional violations. Limitations on (or proposals to eliminate entirely) the exclusionary rule have pointed to § 1983 litigation as the alternative; limits on § 1983 (especially the expansion of qualified immunity) often point to the exclusionary rule as the alternative. But the effect of Davis is to functionally bring the exclusionary rule and qualified immunity further into line. An individual can receive no remedy when an officer relies on established law to conduct a search that is, in fact, unlawful--the exclusionary rule does not keep the evidence out of the criminal case and that officer would enjoy qualified immunity in a § 1983 action because the unlawful nature of the search was not clearly established at the time (in fact, quite the opposite).

The open question is what happens under the exclusionary rule when the law is unsettled--that is, where controlling law does not clearly sanction the particular practice (as in Davis), but where the lawfullness of the practice is unclear. We know that the officer would enjoy qualified immunity in such a case, because where the law is unclear, the officer has not violated a clearly established right. But does the exclusionary rule also overlap with qualified immunity analysis in that situation?

Justice Sotomayor concurred in the judgment to emphasize that this issue was not addressed or resolved in this case. The issue for the exclusionary rule is whether exclusion would "appreciably deter" Fourth Amendment violations. She agreed with the majority that we get no deterrence by excluding evidence where clear controlling law told the officer he was allowed to do what he did. For deterrence purposes, however, there is a difference between clear binding precedent explicitly authorizing an act and unclear law; exclusion in the latter situation does provide appreciable deterrence, by getting officers to steer clear of constitutional lines.

But Justice Breyer's dissent insists that it has been resolved as a matter of logic. Under the majority's view, whether exclusion provides meaningful deterrence in a given case turns, in part, on the "flagrancy" of the police misconduct and the "culpable" nature of the conduct; if the officers did not violate the Fourth Amendment deliberately, recklessly, or with gross negligence, then excluding evidence adds no deterrence. But, Justice Breyer argues, an officer who conducts a search that he believes complies with the Constitution because the law is unsettled and did not tell him otherwise acts no more culpably than an officer who conducts a search that binding precedent tells him is lawful (even if it turns out to be wrong because of a subsequent change in the law). This focus on "culpability" is functionally the same as the objective reasonableness standard for qualified immunity; both look to whether the law told the officer that the search was unlawful and both would deny a remedy where the officer did not know.

For his part, Justice Alito's majority opinion drops a footnote that individuals still can challenge Fourth Amendment-violative searches (including those that became unlawful through subsequent changes in the law) through § 1983 actions against municipalities, where the search is conducted pursuant to a (now-unlawful) municipal policy or custom, without the obstacle of qualified immunity or the good-faith exception to the exclusionary rule. Of course, this seems somewhat disingenuous, given the narrow scope the Court gave to municipal liability just three months ago and the Court's new assumption in § 1983 cases that violations occur because of individual bad apples rather than systemic, institutional "cultures" and that affects individual officers and their behavior.

Posted by Howard Wasserman on June 17, 2011 at 04:11 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

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