Fourth Amendment remedial equilibration: a comment on Herring v. United States and Pearson v. Callahan.

• Author: Owens, David B.
• Position: COMMENT

INTRODUCTION I. ABANDONING RIGHTS ESSENTIALISM: THE REMEDIAL EQUILIBRATION INSIGHT II. HERRING IMPAIRED: EXCLUSIONARY RULE ESSENTIALISM A. Passage of Time B. "Negligence" as a Trigger III. STRENGTHENING QUALIFIED IMMUNITY: PEARSON V. CALLAHAN A. Farewell Saucier B. Saucier's Price IV. A POTENTIALLY PROBLEMATIC DIALECTIC: HERRING AND PEARSON COMBINED A. No Remedy? B. Alternative Remedies and the Need for Constitutional Discourse CONCLUSION INTRODUCTION

[I]t is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.

--Chief Justice John Marshall, Marbury v. Madison (1)

Absence of remedy is absence of right. Defect of remedy is deject of right. A right is as big, precisely, as what the courts will do.

--Karl N. Llewellyn, The Bramble Bush (2)

The Fourth Amendment protects the "right of the people to be secure ... against unreasonable searches and seizures," (3) but determining what this right means and how it should be vindicated has, to put it mildly, long been controversial. (4) In fact, because of the "wide applicability of government intrusions, ranging from countless thousands of daily intrusions at airports, traffic stops, drug testing, traditional criminal law enforcement practices, regulatory intrusions[,] ... and many other searches and seizures, the Amendment is the most commonly implicated and litigated part of our Constitution." (5) Perhaps the most contentious element in the controversy surrounding the Fourth Amendment is determining how to enforce it--whether by the exclusionary rule, which requires unlawfully obtained evidence to be suppressed from a criminal prosecution; a civil damages remedy; an administrative sanction; or some other means.

The remedial controversy surrounding the Fourth Amendment also implicates broader questions about the relationship between a right and its remedy, evidenced by the pair of quotes above. These questions are both abstract and practical. On the abstract side, Chief Justice Marshall's "general and indisputable rule" from Marbury exhibits the deeply-held normative principle that when a right is declared it ought to be accompanied by an attendant remedy. Llewellyn affirms this principle by noting that the causal relationship also runs in the other direction: without a remedy, there is no right. On the practical side, Llewellyn's comment underscores that what courts do, as opposed to what they say, is the effective regulator for the scope of a given right. That is, even if a court says a lot about the value of a right, the manner in which it vindicates that right is really what determines its value.

Evolving notions of property, privacy, and security, coupled with changed circumstances in the world--like the professionalization of the police force and the expansion of methods to eavesdrop and obtain data--have meant that "what the courts will do"--and what they will find constitutionally reasonable--changes too. Each era defines its version of the careful balance between order and liberty embodied in the Amendment, (6) meaning its doctrine expands and constricts over time.

Two decisions from the Supreme Court's 2008 Term indicate that "what the courts will do" has been, and may continue to be, restricted under the Roberts Court. First, in Herring v. United States, (7) the Court split 5-4 and refused to apply the exclusionary rule to evidence obtained in an arrest made where the officer erroneously believed--due to poor, negligent police recordkeeping--that a valid warrant justified the arrest, making the search a Fourth Amendment violation. The holding appears narrow: "when police mistakes are the result of negligence ... rather than systemic error or reckless disregard of constitutional requirements," the exclusionary rule does not apply. (8) Yet, by finding that the costs outweighed the benefits of exclusion for "negligent," as opposed to systemic, widespread errors, the Court further weakened the primary criminal law remedy for Fourth Amendment violations. Justice Ginsburg's dissent decried the Court's new constriction with the practicality of Llewellyn. She noted, "The exclusionary rule ... is often the only remedy effective to redress a Fourth Amendment violation." (9)

Second, in Pearson v. Callahan, (10) the Court unanimously invoked qualified immunity to bar a section 1983 suit against officers who searched a defendant's home in reliance on the "consent-once-removed" doctrine, finding the right not "clearly established" at the time of the violation. (11) Pearson's significance, though, stems from its decision to abandon the sequencing rule of Saucier v. Katz, which required courts to address the question of whether a constitutional violation had occurred before addressing the clarity of its establishment for qualified immunity purposes. (12) Now, "while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory." (13)

Notably, both of these cases purport to deal solely with Fourth Amendment remedies, not the right itself, but, as Llewellyn and Chief Justice Marshall demonstrated, these remedy-centered decisions implicate both sides of the fight-remedy nexus. (14) To interpret the remedial relationship between Herring and Pearson, this Comment adopts Darryl Levinson's "remedial equilibration" thesis, which argues that rights and remedies are "inextricably intertwined." (15) Under this view "[r]ights are dependent on remedies not just for their application to the real world, but for their scope, shape and very existence." (16) Conversely, both cases adhere to a form of "rights essentialism" by disaggregating right from remedy and assuming that any limits imposed on the scope of the remedy will not affect the underlying fight. This strategy is dangerously inattentive to the consequences of alterations to the rights-remedy nexus. Thus, I argue that when viewed from the perspective of remedial equilibration, Herring and Pearson take on new significance: they diminish the meaning of the Fourth Amendment itself.

My primary aim is to demonstrate the practical and theoretical relationship between rights and remedies embodied in Herring and Pearson. This approach has doctrinal consequences, and I elaborate some of them below, but I leave the task of comprehensive doctrinal analysis to others less concerned with the specific relationship between the right and remedy at the core of this Comment. The analysis proceeds in the following manner: After briefly describing the "remedial equilibration" concept in more detail (Part I), Parts II and III consider Herring and Pearson, respectively, in light of the equilibration thesis. Part IV then considers the potential cumulative effect of these decisions. I conclude that, although Marbury's right-remedy linkage has never been taken literally, (17) Fourth Amendment violations where unlawfully obtained evidence is included, but the right is not "clearly established," have no remedy. Nor are citizens assured that future officers engaging in the same conduct will be liable or face any serious consequences. Together then, these cases turn Marbury on its head; in some instances, rights presumptively lack an adequate legal remedy.

1. ABANDONING RIGHTS ESSENTIALISM: THE REMEDIAL EQUILIBRATION INSIGHT

   In Rights Essentialism and Remedial Equilibration, Daryl Levinson attacks "rights essentialism," which remains prevalent in constitutional discourse. This discursive approach "assumes a process of constitutional adjudication that begins with judicial identification of a pure constitutional value," i.e., right, whose purity is "corrupted by being forced into a remedial apparatus that translates the right into an operational rule applied to the facts of the real world." (18) To rights essentialists, "[r]ights occupy an exalted sphere of principle, while remedies are consigned to the banausic sphere of policy, pragmatism and politics." (19) As such, "judicially mandated remedies are only provisionally warranted by their master-servant relationship with the rights they are designed to enforce." (20) Implicit within the rights essentialist paradigm, then, is the assumption that treating rights wholly apart from their remedies has no reciprocal effect on the underlying right.

   Though rights essentialism may be adopted as a theoretical basis meant to strengthen the underlying right, (21) in case law, essentialism typically shows up in a rights-abridging form. Herring's approach is typical: assume, without deciding, the constitutional rights question and begin tinkering with remedies. In the civil rights context, purporting to leave a formal right intact while constricting the "remedial machinery" provides an "insidious" method for a court to "retrench civil rights protections." (22) As Professor Pamela Karlan notes, "[a]t best, this will dilute the value of the right, since some violations will go unremedied. At worst, it may signal potential wrongdoers that they can infringe the right with impunity," (23) Notably, both of these effects alter the right and do so through remedial abridgment, not by actually curtailing the scope of the right itself--undermining the essentialist notion that a right can be "assumed" or formally left intact when considering remedies without reciprocally affecting its meaning.

   Karlan's insight shares theoretical similarity with Levinson's "remedial equilibration" view, which rejects the notion that remedies are "subordinate" and "metaphysically segregated" from the philosophical "purity of rights." (24) Instead, the equilibration perspective argues that "the only way to see the constitutional right ... is to look at remedies." (25) Levinson identifies three trends evident when being attentive to the rights-remedy nexus: (1) remedial deterrence, where the right is shaped by the nature of the remedy that will follow if violated; (2) remedial incorporation, where a...