Alternatives to the Exclusionary Rule.

Theoretically, there are several alternatives to the exclusionary rule. An illegal search and seizure may be criminally actionable and officers undertaking one thus subject to prosecution, but the examples when officers are criminally prosecuted for overzealous law enforcement are extremely rare.430 A police officer who makes an illegal search and seizure is subject to internal departmental discipline, which may be backed up by the oversight of police review boards in the few jurisdictions that have adopted them, but, again, the examples of disciplinary actions are exceedingly rare.431

Civil remedies are also available. Persons who have been illegally arrested or who have had their privacy invaded will usually have a tort action available under state statutory or common law, or against the Federal Government under the Federal Tort Claims Act.

432 Moreover, police officers acting under color of state law who violate a person’s Fourth Amendment rights are subject to a suit in federal court for damages and other remedies433 under a civil rights statute.434 Although federal officers and others acting under color of federal law are not subject to this statute, the Supreme Court has held that a right to damages for a violation of Fourth Amendment rights arises by implication and that this right is enforceable in federal courts.435

Although a damages remedy might be made more effectual,436 legal and practical problems stand in the way.437 Law enforcement officers have available to them the usual common-law defenses, the most important of which is the claim of good faith.438 Such “good faith” claims, however, are not based on the subjective intent of the officer. Instead, officers are entitled to qualified immunity “where clearly established law does not show that the search violated the Fourth Amendment,”439 or where they had an objectively reasonable belief that a warrantless search later determined to violate the Fourth Amendment was supported by probable cause or exigent circumstances.440 On the practical side, persons subjected to illegal arrests and searches and seizures are often disreputable persons toward whom juries are unsympathetic, or they are indigent and unable to sue. The result, therefore, is that the Court has emphasized exclusion of unconstitutionally seized evidence in subsequent criminal trials as the only effective enforcement method.


Edwards, Criminal Liability for Unreasonable Searches and Seizures, 41 VA. L. REV. 621 (1955). back
Goldstein, Police Policy Formulation: A Proposal for Improving Police Performance, 65 MICH. L. REV. 1123 (1967). back
28 U.S.C. §§ 1346(b), 26712680. Section 2680(h) prohibits suits against the Federal Government for false arrest and specified other intentional torts, but contains an exception “with regard to acts or omissions of investigative or law enforcement officials of the United States Government.” back
If there are continuing and recurrent violations, federal injunctive relief would be available. Cf. Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966); Wheeler v. Goodman, 298 F. Supp. 935 (preliminary injunction), 306 F. Supp. 58 (permanent injunction) (W.D.N.C. 1969), vacated on jurisdictional grounds, 401 U.S. 987 (1971). back
42 U.S.C. § 1983 (1964). See Monroe v. Pape, 365 U.S. 167 (1961). In some circumstances, the officer’s liability may be attributed to the municipality. Monell v. New York City Dep’t of Social Services, 436 U.S. 658 (1978). These claims that officers have used excessive force in the course of an arrest or investigatory stop are to be analyzed under the Fourth Amendment, not under substantive due process. The test is “whether the officers’ actions are ‘objectively reasonable’ under the facts and circumstances confronting them.” Graham v. Connor, 490 U.S. 386, 397 (1989) (cited with approval in Scott v. Harris, in which a police officer’s ramming a fleeing motorist’s car from behind in an attempt to stop him was found reasonable). Thus, the Court has noted, “[a]s in other areas of our Fourth Amendment jurisprudence, ‘[d]etermining whether the force used to effect a particular seizure is reasonable’ requires balancing of the individual’s Fourth Amendment interests against the relevant government interests.” Cty. of L.A. v. Mendez, 581 U.S. ___, No. 16–369, slip op. at 6 (2017) (quoting Graham, 490 U.S. at 396) (rejecting the Ninth Circuit’s “provocation rule” under which law enforcement officers who “make a ‘seizure’ of a person using force that is judged to be reasonable based on a consideration of the circumstances relevant to that determination” can “nevertheless be held liable for injuries caused by the seizure on the ground that they committed a separate Fourth Amendment violation that contributed to their need to use force”). “The operative question in excessive force cases is ‘whether the totality of the circumstances justifie[s] a particular sort of search or seizure.’” Id. (quoting Tennessee v. Garner, 471 U.S. 1, 8–9 (1985)). back
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). The possibility had been hinted at in Bell v. Hood, 327 U.S. 678 (1946). back
See, e.g., Chief Justice Burger’s dissent in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 411, 422–24 (1971), which suggests a statute allowing suit against the government in a special tribunal and a statutory remedy in lieu of the exclusionary rule. back
Foote, Tort Remedies for Police Violations of Individual Rights, 39 MINN. L. REV. 493 (1955). back
This is the rule in actions under 42 U.S.C. § 1983, Pierson v. Ray, 386 U.S. 547 (1967), and on remand in Bivens the court of appeals promulgated the same rule to govern trial of the action. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339 (2d Cir. 1972). back
Pearson v. Callahan, 555 U.S. ___, No. 07–751, slip op. (2009), quoted in Safford Unified School District #1 v. Redding, 557 U.S. ___, No. 08–479, slip op. at 11 (2009). In Saucier v. Katz, 533 U.S. 194 (2001), the Court had mandated a two-step procedure to determine whether an officer has qualified immunity: first, a determination whether the officer’s conduct violated a constitutional right, and then a determination whether the right had been clearly established. In Pearson, the Court held “that, while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory. The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” 555 U.S. ___, No. 07–751, slip op. at 10. See also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). back
Anderson v. Creighton, 483 U.S. 635 (1987). The qualified immunity inquiry “has a further dimension” beyond what is required in determining whether a police officer used excessive force in arresting a suspect: the officer may make “a reasonable mistake” in his assessment of what the law requires. Saucier v. Katz, 533 U.S. 194, 205–06 (2001). See also Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (because cases create a “hazy border between excessive and acceptable force,” an officer’s misunderstanding as to her authority to shoot a suspect attempting to flee in a vehicle was not unreasonable); Malley v. Briggs, 475 U.S. 335, 345 (1986) (qualified immunity protects police officers who applied for a warrant unless “a reasonably well-trained officer in [the same] position would have known that his affidavit failed to establish probable cause and that he should not have applied for a warrant”). But see Mullenix v. Luna, 577 U.S. ___, No. 14–1143, slip op. at 8 (2015) (per curiam) (“The Court has . . . never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone be the basis for denying qualified immunity.”). back