The Original Meaning and The Exclusionary Rule

In his recent concurrence in Collins v. Virginia, Justice Clarence Thomas argues that the exclusionary rule for Fourth Amendment violations should not be applied against the states. He states that even the Supreme Court has acknowledged that the rule is not a constitutional rule. And he argues further that at the time of the Constitution, Fourth Amendment violations were remedied through an action against the officer (or self help).  They were not remedied through the exclusion of the evidence.

Assuming Justice Thomas’s historical account (which is also my understanding) is correct, I agree with his conclusion that the exclusionary rule seems problematic. But matters here are more complicated. In the modern world, lawsuits against state officers are often blocked by obstacles – most significantly, that of qualified immunity. It is constitutionally problematic to prevent enforcement of the Fourth Amendment be eliminating all of the remedies. But that is what the Supreme Court has sometimes done and what Justice Thomas’s theory may contemplate.

In some earlier posts, I argued a similar position as to the due process and judicial power clauses. There are two basic points to these posts: (1) the Constitution often assumed and incorporated a historical background, such as the remedies allowed for a violation of a right and (2) the Constitution cannot be read to allow the government to circumvent a constitutional provision by eliminating all of the remedies.

So what does the Fourth Amendment require in this context? If the government – and in this case it is the judicial branch of the government through its invention of qualified immunity – does not allow or limits lawsuits for damages against government officials for Fourth Amendment violations, then it must supply a substitute remedy that is comparable. What would such a remedy be?

One obvious possibility would be a lawsuit against the state for damages due to Fourth Amendment violations. Whether this would be a comparable remedy is an interesting question. There are arguments on both sides. On the one hand, if the remedy is compensation, then receiving compensation from the government instead of the officer should be sufficient. On the other hand, perhaps compensation is only part of the remedy. After all, the requirement to pay damages also deters violations of the wrongful act. If deterrence is also relevant, it might be thought that having the government pay compensation instead of the officer might induce more violations of the law, since the officer would not face liability (and the government could more easily bear the costs).

So how should the Supreme Court address the issue today? If the exclusionary rule is not constitutionally required and the current regime with qualified immunity is unconstitutional, then the best result would simply be to eliminate qualified immunity and the exclusionary rule – and allow lawsuits against officers for compensation. If the states seek to confer immunity on the officers and pay the compensation themselves, then the result depends upon the analysis in the prior paragraph. Either government compensation would be constitutional or not. In the latter case, then the officer liability might be required. But if the government insisted on insulating officers from liability, perhaps the exclusionary rule might be an adequate remedy in some instances. So in this indirect way, it is conceivable that the exclusionary rule might be justified. But the argument requires several steps and is by no means obvious.

The most clearly constitutional result would involve restoring the lawsuit against the state officials who violate the Fourth Amendment. But lawsuits against the state itself or the exclusionary rule might be alternative remedies.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on June 05, 2018 at 08:44:16 am

Lawsuits against the officers as individuals makes a lot of sense from a systems analysis. What you would then have usually is officers taking out insurance to pay for potential damages. The private insurance companies would then be responsible for making sure that bad officers (those likely to violate the law) are removed by being unable to afford the insurance costs. Yes, police officers would need to be paid more to afford the average extra insurance costs, but the overall system would be much better at protecting liberty.

But the exclusionary rule seems to have its own benefits. Imagine a case where an officer really doesn't like you. So they sneak into your house at night and go through all your papers to find a crime (any crime). They admit what they did and offer to pay damages, but you go away for years in jail. What kind of damages could be equal to the harm? Furthermore, what about judgment proof police officers who are knowingly breaking into peoples houses? The exclusionary rule must continue to exist, in my opinion, where there is an element of bad faith (even if direct damages lawsuits were allowed). Where the officers knowing violated the Fourth Amendment to collect evidence. That's a bit more strict then the exclusionary rule that exists today, but not by much. There are currently exceptions to the exclusionary rule for "good faith" violations, which isn't quite the same as only allowing it in cases of bad faith, but it is close.

Qualified Immunity is, as you say, entirely a judge made doctrine. It has no basis in law (statutory or common law). For that reason alone it should be abolished. But even if it were not so. The idea that we expect every citizen in the country to know the law (ignorance of the law is no excuse), except police officers seems to implicate a violation of the equal protection clause. Everyone should be treated the same, police officer or not, for violations of the law. Either ignorance of the law is no excuse for everyone, or it should be a defense for everyone.

read full comment
Image of Devin Watkins
Devin Watkins
on June 05, 2018 at 11:37:28 am

It would be convenient to refrain from using concepts without defining them. What the heck is the exclusionary rule? It is perhaps obvious for an American reader (I very much doubt it, anyway) but not so to a European one like myself. This of course in case the author desires, as I suppose he does and deserves, to be read by a large audience.

read full comment
Image of José Meireles Graça
José Meireles Graça
on June 05, 2018 at 13:07:36 pm

Would not policies insuring an individual LEOs, or the cities and towns employing them, against judgements for violation the law be very much against public policy?

It's really depressing to scroll through the frequent Volokh Conspiracy circuit round-ups and see all the truly grotesque qualified immunity decisions.

And now the lunatics in Congress want to make LEO a protected class. The Supreme Court has laid the all the necessary ground work for a police state and that does seem to be a conscious decision on their part.

read full comment
Image of EK
on June 05, 2018 at 13:50:11 pm

By "against public policy" I assume you are saying that such a contract would be unenforceable as courts would refuse to enforce the contract as it is "against public policy"? There are a few courts which have invalidated insurance contracts for intentional acts by the insured. But usually this isn't the case. For example, insurance coverage is available for defamation, disparagement, trademark infringement, misappropriation of style doing business, unfair competition, infringement of copyright, title or slogan, false imprisonment, employment discrimination, wrongful termination, wrongful eviction, malicious prosecution, and invasion of privacy. (And a lot of these require intentional acts.) There are a few states that prohibit insurance for punitive damages.

Its possible to draw a balance as allowing insurance contracts for negligence in violating the law by police, but not for intentional or willful violations of the law. But I don't think this is necessary. I think there is a good case that it should be up to the insurance company and the officer what the terms of their private contract would be. No insurance company is going to want to continue to insure an officer who is intentionally causing insurance payouts. But it may be that an officer may wish to pay more for an insurance contract that allows such payouts, so they can be more sure that they would be covered in a questionable situation (and if such insurance is withdrawn afterwords they can always get insurance that is only for negligent and not willful conduct). I'm not sure the incentive structure changes all that much even if intentional conduct is covered by insurance. The insurance company would still need to increase the rates and/or drop coverage of an officer who was causing such payouts, which would then cause the deterrent effect.

read full comment
Image of Devin Watkins
Devin Watkins
on June 05, 2018 at 13:56:46 pm

If you don't know what something is. I suggest googling it or going to wikipedia. They can usually answer such a question. Here is the wikipedia page on the subject: https://en.wikipedia.org/wiki/Exclusionary_rule

read full comment
Image of Devin Watkins
Devin Watkins
on June 06, 2018 at 22:35:40 pm

Doesn't qualified immunity only apply to lawsuits under 1983? Couldn't someone still sue in tort for the illegal trespass or battery or whatever? If so, qualified immunity does not change the situation relative to the Framing, because there was no 1983 at all then.

read full comment
Image of brad

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.