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Friday, January 16, 2009
Exclusionary rule and qualified immunity
I do not know enough about exclusionary-rule doctrine. But a question for those who do: Is the long-term upshot of Herring v. United States that the Court brought the exclusionary rule into line with qualified immunity: An officer's reasonable mistake (of law or fact) about some underlying issues (here, whether the arrest warrant on Herring was still outstanding) that justified an unconstitutional search or seizure does not trigger the exclusionary rule despite the constitutional violation. Tom Goldstein at SCOTUSBlog argues that this is where the language of the decision will lead. But that analysis sounds identical to the qualified immunity analysis, which immunizes an officer from damages if his underlying understanding of the situation that lead to his unconstitutional conduct was nevertheless reasonable.
Posted by Howard Wasserman on January 16, 2009 at 07:30 AM in Law and Politics | Permalink
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Comments
Those who think that Herring will bring a major change in the law are worried that the exclusionary rule will be reduced to something like qualified immunity. Note that in the warrant setting, the good faith exception and the QI analysis are already the same -- the question is whether that will expand to a general rule of suppression mirroring the QI analysis.
However, that's not to say such a change would be minor: It would be an extraordinary and dramatic shift. The qualified immunity doctrine exists in the Fourth Amendment setting largely because civil remedies are only a secondary way of enforcing the law here: The exclusionary rule does 99% of the work already. It would be odd for the exclusionary rule to match QI if QI is modest because the exclusionary rule is comparatively broad.
Posted by: Orin Kerr | Jan 16, 2009 12:12:28 PM
The analysis is similar, but hardly identical. Qualified immunity protects the officer and his department from a personal penalty for a violation based upon a reasonable error. The exclusionary rule exacts a societal penalty as an overarching deterrent for a 4th Amendment violation.
A notable gap in the question is that it's not just "the" police officer, but the police as the law enforcement arm of government, whose conduct and errors result in a violation that should be subject to the penalty of the exclusionary rule. When one officer errs and another reasonably relies, we should really care about what each individual officer had in mind and its reasonableness, but about the fact of a violation and the deterrent potential of applying the exclusionary rule to make sure the violation does not happen again.
I believe that part of Tom Goldstein's argument (as well as Ginsburg's dissent) is that the Supreme Court's removal of mere negligence from the list of causes of constitutional violations subject to the exclusionary rule under the guise that there is no need or purpose to detering negligence creates the "Barney Fife" exception that encourages sloppy, lazy, negligent police work that results in violations of individuals' rights.
Sanctioning an individual officer would provide no incentive for police in general to improve their systems. Excluding evidence as a result of sloppy systems that could, and should be corrected to eliminate constitutional violations, on the other hand, would.
Posted by: shg | Jan 16, 2009 8:10:21 AM
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