Predicting Utah v. Strieff's Civil Rights Impact

Abstract

The Supreme Court’s recent Utah v. Strieff decision declined to apply the exclusionary rule to evidence seized as a result of an arrest that followed an unconstitutional stop. The opinion, in conjunction with Justice Sotomayor’s dissent, has reanimated discussions regarding when, if ever, criminal defendants can expect the exclusionary rule to apply. When applied, the exclusionary rule renders inadmissible evidence recovered through “unconstitutional police conduct”; the evidence’s exclusion reinforces the Fourth Amendment’s ban on unreasonable searches and seizures. Unlike most discussions of Strieff, which focus on its implications for criminal defendants,this Essay examines how Strieff will impact civil rights plaintiffs’ ability to recover damages for unconstitutional stops under 42 U.S.C. § 1983.Strieff is just one of several recent cases in which the Court has declined to apply the exclusionary rule. The Court’s decreased application of the exclusionary rule has been accompanied by its increased faith in the threat that Section 1983 civil liability poses to law enforcement officers. For example, in Hudson v. Michigan, the Court declined to apply the exclusionary rule to a knock-and-announce violation. It described how Section 1983 liability, expanded significantly since it was first made available in 1961’s Monroe v. Pape decision, would stand in for the exclusionary rule in producing the desired deterrent effect.In Fourth Amendment jurisprudence, both the exclusionary rule and Section 1983 are cited as different means to the same hypothetical end: deterring future constitutional violations. The exclusionary rule suppresses illegally seized evidence in circumstances where applying the rule is such a severe penalty that the risk of future application prevents illegal law enforcement conduct. The rule only applies when the need for its deterrent effect outweighs the rule’s “substantial social costs,” including the risk that the guilty go free. In contrast, Section 1983 purportedly deters law enforcement officers from engaging in constitutional violations with the threat of having to pay damages to the victim of the violation.Like Hudson, Strieff assumes that when the exclusionary rule is not applied, Section 1983 will adequately deter future unconstitutional stops. This Essay challenges that conclusion. First, it examines how Strieff may limit civil rights plaintiffs’ ability to recover meaningful damage awards for the events caused by unconstitutional stops. Second, it explains that in a civil rights case arising out of a Strieff-like scenario, civil rights plaintiffs will only be able to recover nominal damages. Third, it explains that the damages limitation will discourage attorneys from representing civil rights plaintiffs like Edward Strieff. It concludes that Section 1983 is an inadequate surrogate for the exclusionary rule, and that as a result, absent the exclusionary rule, there is no real deterrent preventing police power abuse.