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The Fourth Amendment, Civil Remedies, and Making Precedent

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One of my least favorite U.S. Supreme Court precedents is Mapp v. Ohio (1961).  That is the case that imposed on the states the rule previously followed by federal courts that evidence obtained in violation of the Fourth Amendment (with "violation" determined long after the fact and frequently unknowable to the police at the time of the search or seizure) must be excluded from a criminal trial.

In my view, the criminal trial should be all about a reliable determination of whether the defendant did it.  All reliable evidence should be considered.  If you want to put the police on trial for what they did, that should be a separate case.

One of the objections to eliminating the Fourth Amendment exclusionary rule and relying on civil remedies is that the doctrine of qualified immunity prevents the resolution of previously undetermined questions.  That is, if the searchee sues the police officer, the officer is entitled to immunity as long as what he did was not clearly illegal at the time of the search.  So how can you ever get to a judicial determination to make the law clear for future cases?

One answer is that if the action in question is a regular practice of the police department, you sue the city, not the cop, and there is no immunity.  Today's decision of the U.S. Court of Appeals for the Ninth Circuit in Lowry v. City of San Diego, No. 13-56141, illustrates the point.
The case involves a claim of excessive force in the use of a police dog by officers responding to a burglar alarm in an office building at night.  Under the federal law governing the civil remedy for civil rights violations, cities are not automatically liable for transgressions by their employees (as employers are in regular tort cases), but they are liable if the violation is part of a "pattern or practice."  In this case the officers acted in accordance with city policy, so the case proceeds against the city.

The three-judge panel consisted of Judges Reinhardt, Tashima, and Clifton, and Ninth Circuit court-watchers will not be surprised in the least to learn that the decision was 2-1 in favor of the plaintiff.  On the merits, I agree with Judge Clifton, and I hope the Ninth takes the case en banc and reverses the panel. 

The point I want to make here, though, is that the legality under the Fourth Amendment of regular practices can be reached in civil litigation without assistance from the exclusion of evidence.  Indeed, for people like Ms. Lowry, civil litigation is all there is.  The exclusionary rule would do her no good at all, as she committed no crime and was not charged with anything.

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Honestly, the answer, in my mind, to decisions that are deliberately wrong--and Reinhardt is smart enough to know that decision was deliberately long--is outright defiance. When judges studiedly blow off the law, and here they did, they cannot complain when those subject to such outright lawlessness say no. All we are talking about here is power . . . . not right.

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