Monday, Jul 16, 2018
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Beyond the exclusionary rule

In a decision announced last week, the U.S. Supreme Court yet again weakened the exclusionary rule, which protects Americans’ rights against unreasonable searches and seizures by forbidding prosecutors to use evidence the police obtain by violating the Fourth Amendment. As in every other case, there is a reason not excluding the evidence in Utah vs. Strieff is appealing: Excluding it could mean letting someone the evidence shows is guilty get away with breaking the law. Yet not excluding it means letting the police get away with breaking the law. There is, at least in principle, a way to escape this dilemma: We need to create or strengthen ways of enforcing the Fourth Amendment that do not rely on excluding evidence the police have already found.

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Congress should make it easier to sue police officers, the agencies that employ them, or both. Theoretically, officers and their agencies already can be sued. But it is very difficult to win, because under a legal doctrine called “qualified immunity,” a government official is only liable for violating your constitutional rights if, when the official acted, your specific constitutional right already was clearly established. And according to Evan Bernick of the Institute for Justice, a libertarian legal group, Fourth Amendment law is so fact-sensitive that your rights are rarely sufficiently clearly established. For their part, Mr. Bernick says, city governments are liable only if they have a pattern or practice of wrongdoing.

The doctrine of qualified immunity was invented by the courts and inserted into federal civil rights law, Mr. Bernick says. It could be abolished or reined in by Congress. And it should be.

Even if individual officers should not be forced to pay damages in most cases, their employers should be, either by being liable themselves or by having to indemnify their officers. That would help make sure they give meaningful weight to respecting citizens’ constitutional rights when training and disciplining officers. And it would tell the victims of police misconduct that their rights matter.

Aaron L. Nielson, associate professor of law at Brigham Young University, argues that if the police are afraid to act when the law is unclear, the innocent may be more likely to suffer wrongdoing at the hands of criminals. But if the police aren’t afraid to break the law, even when it’s unclear, the innocent may be more likely to suffer wrongdoing at the hands of the police.

Professor Louis Michael Seidman of the Georgetown University Law Center points out that any alternative to the exclusionary rule would still, in effect, exclude evidence — and we wouldn't even know how much evidence, because it would be excluded by not being found in the first place. However, the evidence we would lose to such deterrents would be only the evidence that would have been found through constitutional violations (or near-violations) the deterrents successfully prevented.

If we relied solely on nonexclusionary deterrents to enforce the Fourth Amendment, we would get the benefits of reducing Fourth Amendment violations. But, the exclusionary rule should not be abolished at least until something better is put in its place.

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