Pricing the Fourth Amendment.

• Author: Baer, Miriam H.

ABSTRACT

Critics have long decried the Fourth Amendment's lack of an adequate remedy to secure its compliance. Neither the exclusionary rule nor the threat of civil liability deters police misconduct, leaving scholars to cast about for alternative measures. The emphasis on penalties, however, overlooks a different problem: detection. Because of policing's fast-paced nature, even so-called "flagrant" Fourth Amendment violations trigger insufficient liability due to low probabilities of detection.

This Article addresses this problem by drawing on the Pigouvian tax literature. The Pigouvian tax-sometimes referred to as a "corrective tax"-is a pricing instrument imposed by regulators in an amount equal to the expected harm manufacturers or individuals impose on others. Like strict liability, the tax forces an actor to internalize the costs of her activity.

How well might a Pigouvian tax scheme curtail Fourth Amendment violations-particularly intentional ones? How much better off would society be, if, in addition to the remedial systems already in place, it devised an additional system, informed by the vast literature on corrective taxes and pricing?

This Article seeks to answer these questions by imagining a scheme that charges local police departments an annual fee reflecting (a) their annual volume of search activity; (b) the risk that such activity includes and conceals purposeful misconduct; and (c) the harm arising out of such misconduct. The Article further analyzes the various challenges likely to arise in both the design and implementation of such a scheme. A pricing approach is no panacea for all that ails the Fourth Amendment, but it is a potent tool that policymakers would be foolish to ignore.

TABLE OF CONTENTS INTRODUCTION I. THE FOURTH AMENDMENT'S DETECTION PROBLEM A. Standard Criticisms: Too Narrow, Too Weak B. The Less Discussed Problem: Detection C. Detection's Implications II. THE TURN TO PRICING A. Taxation's Advantages 1. Information 2. Timing 3. Detection B. Taxation's Disadvantages 1. Politics 2. Variance 3. Enforcement C. A Pigouvian Fourth Amendment? III. PRICING THE FOURTH AMENDMENT: THE PROPOSAL A. The Proposal B. Design Challenge I: Scope 1. Type of Violation and Culpability 2. Policing Activities 3. Law Enforcement Agencies and Law Enforcement Officials C. Design Challenge II: Specialization D. The Scheme's Benefits IV. PRICING THE FOURTH AMENDMENT: CHALLENGES A. Authority to Price 1. The Remedial Rule 2. The Priority Rule B. Enforcement C. Indifference D. Distributive Concerns E. Expressive Effects CONCLUSION INTRODUCTION

The Fourth Amendment promotes a venerable array of rights, (1) but the remedies that purport to protect them leave much to be desired. (2) The exclusionary rule applies to too little police misconduct, and even then, only to that which occurs within the context of a criminal case. (3) For constitutional tort claims arising under 42 U.S.C. [section] 1983, qualified immunity doctrines shield individual police officers from liability. (4) Parsimonious theories of group liability render municipalities and police departments insufficiently unaccountable, (5) and citywide indemnification programs ensure that individual police officers rarely, if ever, personally pay for their misconduct. (6) Throughout the past decade, partially in response to tragedies involving fatal and excessive uses of force, (7) policing reform has gathered increasing support. (8) Change, most everyone seems to agree, is needed, as demonstrated by President Obama's much heralded assembly of his Task Force on 21st Century Policing. (9) Scholars have argued for a bolder and more effective exclusionary rule; (10) urged courts to reinvigorate the Fourth Amendment's warrant requirement; (11) and advocated the adoption of technological, (12) statutory, (13) and administrative tools (14) to more effectively regulate the police. (15) Although the mechanisms differ, the goals converge on transforming the American police force into a more professionalized, internally reflective, and community-based problem-solving institution. (16)

This Article proposes a different, albeit complementary, approach: a corrective tax designed to "price" Fourth Amendment activity in order to curtail intentional Fourth Amendment violations. (17) How much better off would society be, if, in addition to the remedial systems already in place, it devised an additional system informed by the vast literature on corrective taxes and pricing? Moreover, how well might this regime complement other reforms?

Imagine some federal agency tabulated and charged local police departments an annual fee reflecting (a) the volume of search activity undertaken by police officers in a given year; (b) the risks that this activity included purposeful violations of the Fourth Amendment; and (c) the harm created by these violations. (18) Would such a regime internalize Fourth Amendment violations more effectively than our current highly decentralized, litigation-based system? (19) Would state and local governments alter their policing priorities, redesigning them in a way to de-emphasize potentially unconstitutional searches? And finally, would a pricing regime render policing's costs more transparent and amenable to democratic deliberation?

The argument for a Fourth Amendment pricing regime rests on two propositions. First, it is far easier to observe a police officer's search or seizure of "persons, houses, papers, and effects," (20) than it is to prove that the search or seizure violated the Fourth Amendment. (21) Notwithstanding the emergence of dashboard and body cameras, policing remains a high-paced, decentralized activity wherein misconduct remains difficult to detect. (22) Accordingly, so long as officers avoid notable misbehavior or excessive violence, many illegal searches and seizures will remain undetected. (23)

The second proposition is that different search activities pose varying levels of risk. The stop-and-frisk presents a different set of risks from the search incident to arrest, which in turn differs greatly from search supported by search warrants, and so forth. (24) One of the aims of this Article is to consider how well a pricing scheme can leverage these distinctions and move police officers from the riskiest category of policing towards less risky behavior.

After delineating the program's design and implementation challenges, this Article concludes with a mixed but positive outlook. Pricing is no panacea, but it improves our current remedial system by layering an ex ante regulatory program onto the ex post litigation remedies most scholars deem insufficient. (25) In addition, it centralizes and improves data collection, (26) while leaving ample room for local experimentation. (27) It does not constrain specific police practices. Nor does it dictate a particular policing philosophy or style. Rather, it compels police chiefs and politicians to recognize the costs associated with their policies and practices. (28)

The discussion below proceeds as follows: Part I introduces the Fourth Amendment's detection problem and its implications for deterrence. Part II explores the Pigouvian tax literature and considers the tax's conceptual drawbacks and benefits as applied to Fourth Amendment violations. (29) Part III fleshes out a proposal for a Fourth Amendment pricing regime and, after analyzing several design choices, revisits the discussion of benefits with more specificity. Part IV anticipates likely objections and suggests several solutions. The Article then concludes.

1. THE FOURTH AMENDMENT'S DETECTION PROBLEM

   Over the past half century, commentators have steadfastly documented shortfalls in the protection of Fourth Amendment rights. (30)

   The two pillars of Fourth Amendment remedial law receive the bulk of the criticism, with the exclusionary rule too narrow and [section] 1983 liability too weak. (31) Alternate remedial measures, be they internal discipline or criminal prosecutions, are spotty and unreliable; no serious scholar contends they adequately deter Fourth Amendmentrelated misconduct. (32) Accordingly, one routinely encounters a familiar argument for interpretive doctrinal relief. (33) If the Supreme Court would reverse course and make the exclusionary rule and civil liability stronger with more reliable penalties, police misconduct would (at last) recede.

   This Part aims to correct the misimpression that the Fourth Amendment's sole problem is a weak penalty. After surveying conventional critiques, (34) this Part will address a much less discussed problem, the difficulty in detecting Fourth Amendment violations, (35) and will explain why low detection rates are uniquely problematic for securing Fourth Amendment compliance. (36)

   1. Standard Criticisms: Too Narrow, Too Weak

      The exclusionary rule is narrow in several senses of the word: it applies in only some courtroom settings, protects only some victims, and punishes only some violations. (37) The rule applies at trial only to evidence submitted during the prosecution's case in chief. (38) It does not protect victims illegally searched but subsequently uncharged. (39) Nor does it apply in immigration proceedings (40) or at sentencing. (41) The rule excludes only that evidence that is not too "attenuated" from the violation that led to its discovery. (42) And it rescues only those defendants whose personal Fourth Amendment rights have been violated, and not those who have suffered no personal injury. (43)

      Most importantly, in a number of instances, the rule leaves untouched contraband obtained as a result of "reasonable" mistake or simple negligence. (44) Under such circumstances, prosecutors can introduce evidence at trial obtained during stops or arrests that never should have occurred (45) and arising out of a police officer's factual errors and "reasonable" misunderstanding of substantive state law. (46)

      Civil redress under 42 U.S.C. [section] 1983 is no more...