In yesterday’s post focused on Taylor, I mentioned that I would return to the Court’s decision in Strieff. Seeing what others have now said, I have nothing to say on the case generally that has not already been said by them. So I commend to readers both Kent Scheidegger’s post at C&C and Orin Kerr’s post at SCOTUSBlog.
I write simply to respond to the powerful language used by Justice Sotomayor in her Strieff dissent, which has received substantial media attention. In Part IV of her opinion, she writes eloquently about the humiliation that comes with being stopped and investigated by law enforcement authorities, and she catalogues the many indignities that the Court has approved in its Fourth Amendment cases. She is certainly right about the profound effects that law enforcement inquiry can have upon the individual, and upon the citizenry in a free society. She even refers movingly to “The Talk” that generations of black and brown parents have had to give their children: “instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger – all out of fear of how an officer with a gun will react to them.” But she goes further – much, much further – leaving the realm of social and racial justice and making sweeping allegations about the consequences of the Court’s decision.
Justice Sotomayor writes, “[b]y legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be catalogued.”
I think she overstates her case. I can appreciate the hyperbole for the purpose of making an important point about freedom from an authoritarian government, but I would argue that this case is not quite as she describes it. This is not a case about whether the initial police conduct that led to the discovery of the outstanding warrant was constitutionally permissible – everyone agreed that the officer’s conduct violated the Fourth Amendment. The question was simply whether the subsequently obtained evidence was subject to exclusion in a criminal case. Even though the Court said it was not subject to the exclusionary rule, this was based on the good faith mistakes of the officer and, ultimately, satisfaction of the Brown v. Illinois factors that Justice Thomas described. In a future case, involving the kind of authoritarian police action about which Justice Sotomayor is rightly worried, the officer might not be acting in good faith – Strieff does not countenance an officer’s effort to evade the Fourth Amendment by deliberately stopping a person without appropriate legal justification – and the Brown factors might not be satisfied. I do not understand the Strieff majority to have abandoned case-by-case analysis on this issue, and even Justice Thomas’s opinion notes that in some cases, the police conduct may be sufficiently flagrant to warrant exclusion.
Moreover, because this case was about the exclusionary rule and not the substance of the Fourth Amendment, the aggrieved citizen that Justice Sotomayor describes could still have a legal remedy, under some admittedly narrow circumstances. First, there is the possibility of a civil rights action against the officer or municipality, though this would depend upon whether there is a valid criminal conviction, whether the officer gets immunity, and whether there is a municipal custom, policy, or practice alleged. Furthermore, if Justice Sotomayor is concerned about officers using these kinds of stops in racially discriminatory ways, the suspect still has the benefit of the Equal Protection Clause, rather than the Fourth Amendment. See Whren v. United States. The equal protection claim is not an easy one to make (it requires a showing of purposeful discrimination, rather than mere disparate impact), but it exists separate and apart from the Fourth Amendment claim. Justice Sotomayor does not discuss civil rights remedies, though they are narrow, nor the Equal Protection Clause in this portion of her dissent. Perhaps, though, this is the natural result of making the exclusionary rule – unknown, as Kent explains, to the Framers of our Fourth Amendment – the focus of Fourth Amendment remedies.
I therefore think that Justice Sotomayor, while eloquent and compelling in Strieff, overstates her position by implying that the citizenry is now left wholly unprotected in these situations by the Constitution and laws of this country. I think that is not fully accurate, though I understand her concerns and I acknowledge that other legal remedies (e.g., a civil rights action) might be difficult to obtain or so anemic or burdensome as to be unworthy of pursuing. The chief argument against the exclusionary rule, however, is not – and has never been – that other remedies are perfect. I would also note (as does Kerr) that although Justice Ginsburg joined the other parts of the Sotomayor dissent, she did not join Part IV. In this portion of the dissent, Justice Sotomayor spoke only for herself.