*A longer version of this essay is forthcoming in the Yale Law Journal Forum.
Utah v. Strieff declined to apply the exclusionary rule to evidence seized during an arrest that followed an unconstitutional stop. Strieff will impact civil rights plaintiffs’ ability to recover damages pursuant to 42 U.S.C. § 1983 for both unconstitutional stops and the law enforcement conduct that follows such stops. Section 1983 damages for the kind of unconstitutional stop at issue in Strieff will likely be nominal. The Court assumed that Section 1983 actions were suitable replacements for the exclusionary rule’s deterrent effect. But, actions that result in nominal damages are inadequate proxies for the kind of disincentive the exclusionary rule provides.
The defendant in Strieff was stopped by narcotics detective Douglas Fackrell after Strieff exited a home Fackrell was surveilling for drug dealing. Following the stop, Fackrell learned that Strieff was subject to an arrest warrant. Strieff was arrested, and meth and drug paraphernalia were found on his person. The Court declined to exclude the evidence seized incident to Strieff’s arrest. Though Fackrell’s original stop was unlawful, it was “sufficiently attenuated” by the arrest warrant. Justice Sotomayor dissented, arguing that the evidence should have been excluded. She emphasized that though Streiff was white, suspicionless stops disproportionately victimize people of color. Justice Kagan’s dissent explained that before Strieff, an officer who lacked reasonable suspicion for a stop might have paused to consider the risk of rendering relevant evidence inadmissible. Now, that same officer has no reason to hesitate. Strieff himself argued that without the exclusionary rule’s ability to prevent suspicionless stops, “police will engage in dragnet searches,” stopping people for no reason to discover outstanding arrest warrants. The Court rejected this argument, concluding that the civil liability imposed by Section 1983 deters any such action.
The existence of Section 1983 civil liability does not necessarily deter unconstitutional stops or dragnet searches for arrest warrants.
Strieff will limit the damages available to individuals who suffer unconstitutional stops. Before Strieff, an unconstitutional stop would typically lead to exclusion of drugs found incident to the arrest that followed the stop. Without key drug evidence, prosecuting someone like Strieff for drug possession was futile. But following Strieff, defense counsel will not be able to exclude evidence like the drugs found on Strieff. If the incriminating evidence is admitted, a conviction becomes more likely. Strieff himself conditionally pleaded guilty to possession while reserving his right to appeal his suppression motion denial.
The victim of a suspicionless stop has fewer claims as a Section 1983 plaintiff if he or she has been convicted of a crime related to the stop. A successful false arrest claim allows a plaintiff to recover compensatory damages related to loss of liberty, which can be significant. The Second Circuit affirmed an award of $360,000 for false arrest when the plaintiff was held for 19 hours. But a conviction establishes probable cause for arrest, barring a plaintiff from bringing a Section 1983 claim arising out of the arrest. Now, if a plaintiff like Strieff pleads guilty or is convicted following trial, he cannot recover damages that compensate him for arrest-related loss of liberty.
Section 1983’s deterrent effect is severely limited by a plaintiff’s inability to recover meaningful damages for an unconstitutional stop like the one Strieff endured. Damages based on an unconstitutional stop alone will arise out of the invasion of privacy the person stopped endured, which may be hard to measure. Also, even if there is a loss of privacy or dignity, the loss is limited to the short time period in which the unconstitutional stop lasts. In Strieff, the incriminatory evidence was found “only minutes” after the stop, and the stop itself lasted a fraction of that time. The stop did not cause physical injury or property damage. Any Section 1983 damages based on such a stop would likely be nominal. As a result, Section 1983 suits arising out of suspicionless stops like Strieff’s will result in damages awards too small to deter future suspicionless stops. The threat of nominal damages awards are unlikely to deter unconstitutional conduct.
Though civil rights plaintiffs could theoretically seek injunctions, Section 1983 litigation is characterized as a deterrent because, in theory, it relies on an officer’s desire to avoid unconstitutional behavior so as to avoid civil liability and civil damages. Moreover, City of Los Angeles v. Lyons imposes an almost insurmountable standing bar for Section 1983 injunctive relief. Plaintiffs will also struggle to recover punitive damages given the demanding proof those damages require.
The Section 1983 suits Strieff envisions may in fact never be filed. There may be no lawyers to bring them. In Hudson v. Michigan, the Court brushed aside the claim that nominal recoveries are unattractive to civil rights lawyers because of the availability of attorneys’ fees. However, to receive attorneys’ fees, a civil rights plaintiff must prevail, which requires obtaining a judgment or consent decree that changes the parties’ legal relationship.
If a plaintiff enters into a private settlement agreement that isn’t incorporated into an order of dismissal, the plaintiff is not a prevailing party entitled to attorneys’ fees. Many civil rights cases, like most civil cases, settle privately. Civil rights defense attorneys know how to craft terms that purposefully eliminate the ability to recover fees. Without fee-shifting, plaintiff’s counsel recovers a contingency fee representing a fraction of what the plaintiff receives, typically one-third. One-third of a nominal damages award is not worth the effort of litigating an unconstitutional stop case.
Moreover, representing a plaintiff like Strieff in a civil rights action is impractical. The plaintiff may be incarcerated during the civil litigation, making client contact and discovery more difficult. If the case is tried, and the plaintiff wishes to appear at trial, plaintiff’s counsel will need to litigate everything from where the plaintiff will be held during the trial, whether the plaintiff will be handcuffed at trial, whether the plaintiff will be allowed to dress in something other than a prison jumpsuit at trial, and whether the plaintiff will be able to appear at all. These inconveniences make cases brought on behalf of plaintiffs like Strieff unlikely.
As Justice Sotomayor warns, Strieff will likely result in suspicionless stops designed to catch warrant violators. Such stops are already common, and disproportionately target people of color. Strieff does additional damage by stripping the victims of suspicionless stops of a meaningful civil remedy. If suspicionless stops do not trigger evidence exclusion in criminal trials or meaningful civil rights damages, they will continue to multiply.