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Thursday, May 31, 2018

SCOTUS Term: Collins v. Virginia And Remedial Shell Games

In Collins v. Virginia, the Court held that the automobile exception to the warrant requirement does not permit police officers to enter the curtilage of a home to search a parked vehicle. Although he joined the majority, Justice Thomas wrote a separate opinion in which he questioned the application of the exclusionary rule to the states.

Justice Thomas’s opinion is part of a long line of cases and individual Justice's writings that chip away at the foundations for the exclusionary rule. His opinion also illustrates a phenomenon I wrote about in a paper forthcoming in the California Law ReviewRemedial Convergence and Collapse. In the paper, I argue that the Court’s opinions engage in something of a shell game with respect to remedies for violations related to policing: The Court will question and limit one remedy, while also suggesting that another remedy could substitute for it and incentivize the government to comply with the law. But when faced with a case in which a plaintiff seeks that other remedy, the Court will deny that one too.

Collins showcases how that might occur. In that case, Justice Thomas questioned the application of the exclusionary rule. Without the exclusionary rule, damages suits against officers would presumably serve as the remedy for Fourth Amendment violations. But as anyone following the Court’s docket over the last decade knows, the Court has ratcheted up the standard for qualified immunity, making it hard, if not impossible, to recover damages in most cases of Fourth Amendment violations. The Court summarily reversed a denial of qualified immunity just a few weeks ago, in Kisela v. Hughes, over a dissent by Justice Sotomayor, which was joined only by Justice Ginsburg, and not Justice Thomas.

Now, Justice Thomas has also questioned the Court’s qualified immunity jurisprudence. But until he gets five Justices to cut back on the Court’s qualified immunity jurisprudence and actually stick with that rule, doing away with the exclusionary rule will only further entrench the lack of any viable remedies for parties aggrieved by constitutional violations. And the difficulty of assembling and coordinating five Justices who can agree not only that there should be a remedy in cases involving constitutional violations, but also what the appropriate or default remedy should be, has created a real problem in the Court’s remedies jurisprudence.

Cross-posted at Take Care.

Posted by Leah Litman on May 31, 2018 at 10:11 AM in 2018 End of Term, Article Spotlight | Permalink

Comments

Justice Thomas cited Prof. Akhil Amar (didn't see a Orin Kerr cite) as one of the authorities doubtful of the exclusionary rule. I'm not thinking Thomas will agree with Amar on a variety of things (though they might share some common ground on guns) but Amar would as I understand it require a strong alternative remedy. Juries would play a big role for him.

Justice Clark wrote Mapp v. Ohio applying the rule to the states, arguing that it was practicably necessary to defend Fourth Amendment rights. Clark came from a law enforcement background and was a conservative dissenter in various Warren Era decisions. But, many agree with his practical judgment.

Posted by: Joe | May 31, 2018 11:40:21 AM

It's not clear that qualified immunity is the real issue here. Suppose the doctrine were abolished, and Collins were able to obtain damages against Officer Rhodes, or even Albemarle County Police Department, for removing and then replacing a tarp on his motorbike when parked in the driveway. What damages could he claim? So he gets a nominal recovery. So what?

Your reference to "viable remedies for parties aggrieved by constitutional violations" leads to the natural question - viable for what purpose? I say it's about making the plaintiff whole, so I'm pleased with the result where Collins gets nominal damages and a felony conviction. But I suspect you don't agree.

It's also worth pointing out that, while Thomas's concurrence in Ziglar v. Abbasi was solo, so too was his concurrence in Collins v. Virginia. We're no closer to "doing away with the exclusionary rule," as you put it, than we are to doing away with qualified immunity.

Posted by: Salem Al-Damluji | May 31, 2018 11:51:24 AM

Thanks for that post and ruling .Beyond crazy complications with fourth amendment issues here , It seems that the respectable author of the post , is introducing the remedy issue , in the wrong case ( current one , Collins v. Virginia ) . This is because , according to the jurisprudence , the constitutional violation , should be clearly established . It seems , that this is not the case where a clear constitutional right has been violated. One can't argue , that the discretion of the police officer , was that much or clearly impaired. I haven't read the whole case yet , but , it looks rather as a borderline area or case. Whether such parked motorcycle was really in plain view area , or totally private one ( let alone the exclusionary rule suggests it also ). The dissenting opinion of Justice Alito , may also suggest it ( for it does touch the heart of that issue , I quote him in the dissenting : " Thus , the issue here is whether there is any good reason why this same rule should not apply when the vehicle is parked in plain view in a driveway just a few feet from the street " ) .

And Just to cite the factors for clearly established right :

A government official has qualified immunity "if his conduct did not violate clearly established rights or if it would have been objectively reasonable for the official to believe his conduct did not violate plaintiffs rights." Harris v. O'Hare, 770 F.3d 224, 239 (2d Cir. 2014) (internal quotation marks and citations omitted). Courts evaluating qualified immunity engage in a "two pronged inquiry. The first prong asks whether the facts, taken in the light most favorable to the party asserting the injury, show the officer's conduct violated a federal right. The second prong of the qualified immunity analysis asks whether the right in question was clearly established at the time of the violation." (Eastern district of new York , shuay'b greenaway v. County of Nassau )

End of quotation :

So , I am not so sure , that in that current case ( apparently ) such right has been clearly established. But , I shall read the majority and understand better .

Thanks

Posted by: El roam | May 31, 2018 1:01:29 PM

Taking time and real effort to make a good post. Cool! Thank you for sharing this post.

Posted by: تو آنلاین گیمز | May 31, 2018 2:01:38 PM

Leah, I agree. I wrote a bit related to this dynamic a few years ago in the context of the Court cutting back on Fourth Amendment remedies and its effect on the ability to decide important legal issues:

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Significantly, the trend [of cutting back remedies] is coming from all directions simultaneously. When the Court chips away at law development in civil cases, it points to the continuing availability of law development using other remedies, such as the exclusionary rule. When the Court chips away at the exclusionary rule, it points to the continuing availability of law development with other remedies, including civil liability. Cases in each context point to the others, but all seem to be moving in the same direction at the same time.
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Fourth Amendment Remedies and Development of the Law: A Comment on Camreta v. Greene and Davis v. United States, 2011 CATO SUPREME COURT REVIEW 237 (2011)

Posted by: Orin Kerr | May 31, 2018 3:29:02 PM

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