The argument that is always raised in response is that there no other way of enforcing the Fourth Amendment. (Comparison to other countries, of which our opponents are so fond in other contexts, strangely doesn't carry any weight with them on this one.) Suing individual police officers in borderline situations must not be allowed. For good reason, the Supreme Court has created qualified immunity. Without it, officers would either be overly timid in enforcing the law or leave law enforcement altogether.
Almost four decades ago, Chief Justice Warren Burger threw down the gauntlet in a dissenting opinion in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 422 (1971) (footnotes omitted):
I conclude, therefore, that an entirely different remedy is necessary, but it is one that, in my view, is as much beyond judicial power as the step the Court takes today. Congress should develop an administrative or quasi-judicial remedy against the government itself to afford compensation and restitution for persons whose Fourth Amendment rights have been violated. The venerable doctrine of respondeat superior in our tort law provides an entirely appropriate conceptual basis for this remedy. If, for example, a security guard privately employed by a department store commits an assault or other tort on a customer such as an improper search, the victim has a simple and obvious remedy -- an action for money damages against the guard's employer, the department store. W. Prosser, The Law of Torts ยง 68, pp. 470-480 (3d ed.1964). Such a statutory scheme would have the added advantage of providing some remedy to the completely innocent persons who are sometimes the victims of illegal police conduct -- something that the suppression doctrine, of course, can never accomplish.
A simple structure would suffice. For example, Congress could enact a statute along the following lines:
Alas, Congress never picked up the challenge.(a) a waiver of sovereign immunity as to the illegal acts of law enforcement officials committed in the performance of assigned duties;
(b) the creation of a cause of action for damages sustained by any person aggrieved by conduct of governmental agents in violation of the Fourth Amendment or statutes regulating official conduct;
(c) the creation of a tribunal, quasi-judicial in nature or perhaps patterned after the United States Court of Claims, to adjudicate all claims under the statute;
(d) a provision that this statutory remedy is in lieu of the exclusion of evidence secured for use in criminal cases in violation of the Fourth Amendment; and
(e) a provision directing that no evidence, otherwise admissible, shall be excluded from any criminal proceeding because of violation of the Fourth Amendment.
Randy Barnett has this post at the Volokh Conspiracy, discussing his 1983 law review article on the subject.
What would it take, politically, for Congress to actually move on the subject? When the Republicans were at their crest, it would have taken an assurance that the substitute remedy actually could replace the exclusionary rule. It's hard to see how the Supreme Court could have given such an assurance without issuing an advisory opinion, which it won't do. Under the present congressional leadership, the opposite dynamic controls. Ms. Pelosi et al. will not propose anything to replace the exclusionary rule so long as that rule is in force. Only if it is yanked out by overruling Mapp v. Ohio, 367 U.S. 643 (1961), would a replacement have any political chance.
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