Monday, June 15, 2020

Could Elimination of Qualified Immunity Lead to Elimination of the Exclusionary Rule?

by Michael C. Dorf

In my Verdict column last week, I discussed the emerging bipartisan coalition that aims to eliminate or substantially cut back on the qualified immunity (QI) that state and local officials currently enjoy when sued for civil rights violations. To summarize what I wrote in the column:

(1) The main federal statute authorizing civil rights suits does not mention QI, but the courts have read in such a defense partly on the ground that the Reconstruction Congress that wrote the statute assumed QI as part of the background common law and partly on the policy ground of avoiding over-deterrence of the police and other state and local officials. (2) Conservatives have lately questioned QI on the ground that the current doctrine goes well beyond the 19th-century common law and more broadly on textualist grounds, thus joining liberals who have long argued that QI provides the police with a too-generous shield. (3) Because of the essentially universal practice of indemnification, QI's elimination would not expose individual officers to added liability. (4) Thus, the main impact of eliminating (or very substantially curtailing) QI would be to impose what is effectively respondent superior liability on the governments that indemnify their officers, which could have the benefit of leading those governments to better train, supervise, and discipline officers. (5) But municipalities are already on the hook for the most egregious violations (like police murdering innocent civilians) and those violations occur at an alarming rate, so additional liability might not have much deterrent value. (6) Indeed, eliminating or substantially curtailing QI could even have a perverse effect of narrowing the underlying constitutional rights, because conservative judges and justices who are currently willing to recognize civil rights might hesitate to do so if the consequence is what they regard as unexpected and thus unfair liability.

My Verdict column did not reach a conclusion about the question whether eliminating or substantially curtailing QI would be net-positive, instead simply laying out the potential benefits and costs as summarized above. In response to the column, I received an email from my former student, attorney George El-Khoury, identifying another potential cost: the elimination or substantial further curtailment of the Fourth Amendment exclusionary rule (ER). After elaborating why QI elimination or curtailment could imperil the ER, I'll suggest a strategy for minimizing the risk. The strategy is Congressional legislation.

The civil rights statute authorizes civil lawsuits for "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the US, but because current attention focuses on police misconduct, I'll focus here on the Fourth Amendment--which forbids "unreasonable searches and seizures." It--or more precisely, the Fourteenth Amendment incorporating the Fourth--is the primary underlying right at issue in cases alleging excessive force or otherwise unreasonable conduct by the police. A civil lawsuit against individual officers or against a local government (if the violation was pursuant to a policy or practice) is one but not the only remedy for Fourth Amendment violations. In addition, under a line of cases beginning with Mapp v. Ohio in 1961, the prosecution may not use evidence obtained in violation of the Fourth Amendment against a defendant in a state criminal prosecution. That is the ER.

The ER has never been popular with conservatives or, for that matter, with much of the public, who regard it as allowing defendants to escape conviction based on a technicality. As then-Judge Cardozo characterized the ER: "The criminal is to go free because the constable has blundered." There is certainly something to this view. The ER excludes otherwise-reliable evidence of guilt.

Conservative opposition to the ER has also been grounded in broader jurisprudential commitments. Early cases could be read as regarding the ER as required by the Fourth Amendment itself, partly on a judicial integrity rationale: a court admitting evidence obtained in violation of the Fourth Amendment was seen to be compounding the violation. But eventually the Supreme Court rejected this view in favor of a deterrent rationale. Under this still-operative approach, the ER is a judge-made remedy that serves to deter future Fourth Amendment violations. The ER is thus sometimes said to be a "prophylactic" rule, and as such, the Court deploys it selectively. And if (as a SCOTUS majority maintains) the Fourth Amendment itself doesn't require exclusion, then the Court can balance the costs and benefits of exclusion in particular contexts. Consequently, for roughly the last five decades, conservative Justices have found various exceptions to the ER.

A more far-reaching critique of the ER-solely-as-deterrent says that the ER itself is illegitimate because the Supreme Court lacks the power to impose prophylactic rules on state and local officers. (Some versions of this argument distinguish the Court's ostensibly greater supervisory authority with respect to lower federal courts and thus searches by FBI agents and other federal officers.) Thus far, a SCOTUS majority has retained the ER notwithstanding the assault on the legitimacy of the ER, but it is possible that elimination (or substantial curtailment) of QI could change that.

How so? Consider two arguments.

(a) The jurisprudential case against QI closely parallels the jurisprudential case against the ER. Both sound in textualism. The statute doesn't mention QI, so the courts shouldn't grant it as a matter of federal common law; the Fourth Amendment doesn't mention exclusion, so the court shouldn't grant it prophylactically, as a form of federal common law. The jurisprudential analogy extends even to the jurisprudential arguments for substantially cutting back on, rather than eliminating, QI. Justice Thomas, in his concurrence in Ziglar v. Abbasi, critiques modern QI doctrine on the ground that it is not consonant with the narrower immunity that existed at common law. He implies that the Court can only read qualifications into authoritative text, if at all, where those qualifications would have been part of the background understanding of the people who adopted the text. On this view, there might be authority for a much narrower conception of QI, but there would be no authority for the ER, absent evidence that framers and ratifiers of the Fourth or Fourteenth Amendment expected exclusion--and there doesn't appear to be such evidence.

(b) Meanwhile, even many proponents of retaining the ER recognize that it is an imperfect tool for deterring police misconduct. As Professor Colb has argued, the main purpose of the Fourth Amendment is to protect the privacy of people who have not violated the criminal law. Because, ex ante, the police do not know whether searching any given suspect will yield evidence of crime, the Fourth Amendment protects the guilty and the innocent alike, but the guilty are mostly incidental beneficiaries of the Fourth Amendment. "Mostly" rather than "entirely" because Prof Colb also recognizes what she calls the targeting harm of being singled out for a search or seizure based on an inadequate basis. And of course even the guilty enjoy full protection against excessive force by the police. In any event, if there were some way to redress Fourth Amendment violations that did not have the substantial cost of allowing "the criminal to go free," that would seem superior to the ER. Heretofore, the main argument for the ER as deterrent is that nothing else works nearly as well.

However, a conservative Justice who dislikes the ER to begin with might think to himself that elimination or substantial curtailment of QI changes the calculus. Now, for the first time, damages actions could be an effective deterrent of police misconduct. Accordingly, a conservative Justice could reason, without QI the Court can also dispense with the ER and its attendant costs to law enforcement.

To be clear, I am not persuaded by either of these arguments. With respect to (a), I take a broader view of the Supreme Court's power to fashion federal common law, especially with respect to remedies, than the view of the conservative critics of QI and the ER. With respect to (b), as I noted in my Verdict column, it is hardly obvious that elimination or substantial curtailment of QI would seriously reduce police misconduct. Nor are the sorts of cases likely to give rise to substantial damages--and thus the incentive to bring a federal civil rights suit--coextensive with the sorts of cases that give rise to evidence suppression under the ER. Even if we are only concerned about what Prof Colb, quoting the late Prof Bill Stuntz, called "law-abiding privacy," the ER needs to play its deterrent role.

Yet the fact that I wouldn't treat elimination or substantial curtailment of QI as grounds for abandoning the ER doesn't mean that a conservative majority of the SCOTUS wouldn't. I think there is some risk that the two changes would go hand in hand.

Suppose you think that, notwithstanding the concerns I raised in my Verdict column, all things considered QI should be abandoned or substantially limited, but you are worried that abandonment or substantial limitation of QI would have the unacceptably high risk of eliminating the ER. Is there a way to avoid that risk?

Sure there is. Legislative elimination or curtailment of QI would not carry with it the jurisprudential implications identified in (a). Congress would not be passing judgment on whether QI doctrine was legitimate as a judge-made doctrine. It would simply be amending the (federal) common law.

However, a statute that merely eliminates or curtails QI would still leave the ER vulnerable to the policy argument in (b). Conservative jurists could say "now that Congress has provided a broader civil remedy, there's no longer a need for the judge-made remedy of the ER." Luckily, there's a ready way to avoid that problem too. The same statute that eliminated or curtailed QI could also reaffirm and codify the ER.

Could Congress do that? Almost certainly yes, under the grant of power in Section 5 of the Fourteenth Amendment. Although the Supreme Court's Section 5 cases limit enforcement legislation to measures that are "congruent and proportionate" to what the Court would deem violations of Section 1, here that standard is pretty clearly met. Congress would not be attempting to redefine the substantive rights under Section 1 but providing remedies for what the Court itself deems violations of those rights. Section 1 of the Fourteenth Amendment incorporates the Fourth Amendment, which provides the substance of the underlying rights. The ER as remedy would only apply where there is a violation of the Court's conception of the Fourth Amendment.

The main obstacle to a legislative solution is political. Although there is growing conservative support for eliminating or curtailing QI, there is not, to my knowledge, conservative support for preserving/codifying the ER. Hence, a legislative fix to QI that doesn't risk undercutting the ER might have to await a different Congress and President.