//  4/11/18  //  Commentary

I just posted a draft of my article, Remedial Convergence and Collapse, which is forthcoming in the California Law Review.  The article offers another reason to be concerned about the Supreme Court’s recent summary reversal in Kisela v. Hughes. Kisela held that a plaintiff could not recover damages from a police officer who shot the plaintiff four times.  Responding to a call about a woman with a knife, the officer stood six feet away from the woman, who did have a kitchen knife and was outdoors speaking with her roommate. The officer also warned the woman that he was going to shoot her.

Some have questioned the Court’s resolution of the specific question in Kisela; others, including Justice Sotomayor, questioned the Court’s reasons for granting review in that case out of the several thousands of cases the Court is asked to hear in a given year.

But Kisela also relates to a phenomena I flagged in Remedial Convergence and Collapse—namely, how the standards for obtaining a variety of different remedies for executive violations of constitutional rights, and policing violations in particular, have converged on the same standard. That standard, which is on full display in Kisela, emphasizes the importance of existing case law (ideally Supreme Court case law or unanimity among the courts of appeals), reading that case law narrowly, and systemic wrongdoing, among other things.

The problem is not just that that standard is an extraordinarily difficult one to meet.  It’s also that that standard has now been applied to almost every potential remedy a private citizen might seek—damages against state officials; damages against federal officials; writs of habeas corpus; exclusion of evidence from criminal trials; damages against municipal entities; and, in some cases, suits for injunctive relief.  Thus, there isn’t a mechanism to enforce constitutional rights as such. There is, instead, a system to enforce a watered-down version of constitutional rights-- those that courts (and preferably the Supreme Court) explicitly and particularly recognized (preferably long ago).

What makes the convergence in the different remedial standards especially troubling is that the Court now often maintains that courts can withhold one remedy on the ground that another remedy can and should substitute for whatever remedy a plaintiff has sought. And that other remedy, the Court assures us, ensures the government has adequate incentives to comply with the law. So, for example, the Court will say that the exclusionary rule isn’t needed, because damages suits deter violations of the Fourth Amendment; it will say post-conviction relief isn’t needed because the exclusionary rule exists; it will say a damages suits against an individual officer isn’t needed because damages suits against a municipal entity is available.  But if the same standard governs the availability of so many different remedies, withholding one remedy suggests that the other remedies also wouldn’t be available, since a similar standard determines their availability. 

I offer some other reasons to think that the convergence of all of these standards doesn’t make much sense.  For example, the convergence also overlooks the fact that the remedies are different from one another, and raise different concerns.

You can read a draft of the paper here.


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