Thursday, July 21, 2016
The Supreme Court’s recent Utah v. Strieff decision, which declined to apply the exclusionary rule to evidence seized as a result of an arrest that followed an unconstitutional stop, will impact civil rights plaintiffs’ ability to recover damages for unconstitutional stops. Before Strieff, convictions based on evidence recovered following an unconstitutional stop were unlikely because the incriminating evidence the stop helped uncover was suppressed. Consequently, the arrests that followed those stops could give rise to Section 1983 false arrest claims. Because Strieff allows the admission of evidence recovered as a result of an unconstitutional stop, convictions caused by those stops are more likely. Convictions render the underlying arrests privileged; privileged arrests cannot form the basis of false arrest Section 1983 claims. If false arrest claims are unavailable, so are false arrests damages. Such damages can be significant, compensating plaintiffs for each hour of confinement, sometimes at the rate of $9,000 per hour. Strieff will limit civil rights plaintiffs’ recovery to nominal damages, and the damages will be limited to those caused by the stops alone. Section 1983 will have no deterrence potential in the context of unconstitutional stops. This damages limitation will also discourage attorneys from representing civil rights plaintiffs like Strieff.
Though Justice Thomas’s majority opinion assumes that Section 1983 will deter unconstitutional stops, this essay contends that Section 1983 is an inadequate proxy for the exclusionary rule’s deterrent effect. Strieff will likely cause more pretextual stops, warrant checks and arrests that disproportionately target people of color. The victims of such practices will also be robbed of any meaningful civil rights remedy.