Orin writes:

Originalists are often opposed to the exclusionary rule, the rule that evidence obtained in violation of the Fourth Amendment cannot be used in court. The exclusionary rule was made up by 19th and 20th century judges, the argument runs. At common law, the remedies for violations of search and seizure law were civil damages against the officers, not exclusion of evidence. Because the Fourth Amendment is widely recognized to have adopted and endorsed those cases, such as Entick v. Carrington (1765), the exclusionary rule must be abolished. It simply is not part of the original Fourth Amendment remedies observed in cases like Entick.

I’m not entirely sure that’s correct, but let’s assume it is. Here’s my question: If you’re an originalist, does that mean that you think the Constitution guarantees the civil remedies that existed at common law for search and seizure violations? Put another way, can modern judges change the civil remedies that were available at common law for constitutional violations? Or is there a civil remedies scheme that must be available under an originalist understanding of the Fourth Amendment?

I ask that in part because I often encounter a very strange disconnect when originalists discuss the exclusionary rule versus civil damages as a means of enforcing the Fourth Amendment. In discussing the exclusionary rule, most originalists contend that the Fourth Amendment can only be enforced as it was at common law. On the other hand, in discussing civil damages, self-described originalists often seem to go all living constitutionalist: Suddenly the scope of civil damages is just a question of policy, not originalism, and often that means inventing new limitations on damages or following Warren Court-era precedents that did so. I’m curious: Is there a genuine way to reconcile these two sets of beliefs?

Mike replies:

I assume Professor Kerr is mostly thinking about claims against federal officers under Bivens v. Six Unknown Agents (since that’s what Andersonwas).  In Bivens, a 1971 Brennan opinion, the Court created what it called an implied cause of action under the Constitution to sue for Fourth Amendment violations.  But I think few originalists think this was required by the Constitution’s original meaning (Scalia surely doesn’t).  Rather, the eighteenth-century idea was (as Professor Kerr says) that there would be state common law remedies under traditional torts such as trespass or battery.  A federal officer would have a defense to such tort claims to the extent (but only to the extent) that the officer was acting in an official legal capacity.  If the officer acted unconstitutionally (per the Fourth Amendment), the officer’s supposed official status wouldn’t be a shield – so the Fourth Amendment, in effect, prevented federal officers from using their official status to defend against state common law suits.

Notably, under this understanding there’s no constitutionally assured damages remedy – the scope of the common law action is a question of state law (or federal law, if Congress wanted to act in the area).

Bivens changed this by creating a federal cause of action for Fourth Amendment violations.  Bivens claimed a basis in the Constitution, but it didn’t arise from the Constitution’s original meaning; an originalist would more likely think of Bivens as a creation of federal common law (which doesn’t necessarily mean it was illegitimate, just that it wasn’t constitutionally required).  That explains, though, why the Court in cases like Anderson felt free to engage in what was (as Professor Kerr suggests) basically common law rulemaking rather than originalism.  It was common law rulemaking, because all of Bivens, from which Anderson arose, is sub-constitutional federal common law.

It’s important to distinguish Anderson from two other sorts of suits for Fourth Amendment violations:  (1) Fourth Amendment (really, Fourteenth Amendment) claims against state and local officials brought under the federal statute 42 U.S.C. 1983 (Section 1983 claims), and (2) state law claims (e.g., for trespass or battery) brought against federal, state or local officers.  Neither of these is a constitutional claim and so they don’t raise issues of constitutional originalism.

Under Section 1983, courts have found implied qualified immunity (or in some situations absolute immunity) as a matter of statutory interpretation – perhaps wrongly, but that’s not of constitutional concern.  As to state law claims, I would think federal courts couldn’t impose requirements like qualified immunity (whether Congress could is a different question).  But states aren’t obligated to allow such claims at all, so they have latitude to impose such limitations themselves.  The only place in this field that I know of where federal courts are creating non-statutory federal immunities is inBivens claims (like Anderson).  But they are doing it as a matter of common law, not constitutional law.

Thus Professor Kerr’s challenge is actually a bit of a non sequitur.  Federal courts can’t impose non-constitutional limits on state law prosecutions (which is what most originalists would say the exclusionary rule does).  Federal courts can (or may be able to) recognize non-constitutional federal common law claims against federal officers, as Bivens did, but few originalists would say they are required to.  If Bivens is a court-created cause of action, courts are free to limit it – as they have through qualified immunity in Anderson – on non-originalist policy grounds.  There’s no contradiction.

My question.