An Introduction to the Availability of Monetary Damages

Much as members of the public commonly overestimate the role of the exclusionary rule in freeing guilty defendants on “technicalities,” public opinion also overestimates the availability of money damages to the victims of police misconduct. For multiple reasons, persons who suffer unlawful searches and seizures—as well as those who experience violations of their rights related to interrogations—rarely recover money.

First, many people under police investigation—the people most likely to undergo searches, seizures, and interrogations, whether lawful or unlawful—are criminals. Imagine, for example, that police violate the “knock-and-announce” rule and break down a suspect’s door unlawfully. Then, while executing a valid search warrant, police find cocaine. Under the rule of Hudson v. Michigan (Chapter 32), the knock-and-announce violation would not stop prosecutors from using the seized drugs at trial to convict the suspect of illegal possession. In theory, the convicted defendant could then sue police for damages related to the breaking of his door. A lawsuit against state officials could be brought under “Section 1983,” as 42 U.S.C. § 1983 is commonly known. A suit against federal officials could be brought under the remedy provided in Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), which provides a civil remedy (known as a “Bivens action”) for certain constitutional violations by federal agents. See also Hernandez v. Mesa, No. 17–1678 (U.S. Feb. 25, 2020) (holding that family of a Mexican victim of unreasonable cross-border shooting by U.S. Border Patrol agent cannot bring Bivens action).

In practice, however, the defendant would likely have trouble finding a lawyer willing to take the case. In order to make his case to jurors, the convicted criminal defendant—now a civil plaintiff—would need to describe the incident, which involves police finding cocaine at his home. Further, the plaintiff’s testimony could be impeached with evidence of the drug conviction.86 Jurors have been known to disfavor claims brought by convicted felons.

While a prevailing plaintiff in a “constitutional tort” case against state officials is entitled to reasonable attorney’s fees paid by the defendant,87 a plaintiff who loses must pay his own lawyer. Therefore, unless the victim of police misconduct has money for legal bills, he must convince a lawyer to take his case on a contingent fee basis, which a lawyer is likely to do only if she expects to win. In addition, if the actual damages awarded to prevailing plaintiffs are low, lawyers may not profit unless they win a high percentage of their cases. A lawyer who represents an indigent civil rights plaintiff on a contingency basis often pays up front for expenses such as travel, depositions, and expert witnesses. If the client loses, the lawyer may never be repaid for expenses in the tens of thousands of dollars. If the client wins, then the lawyer must hope that the judge’s definition of a “reasonable fee” is fair, which may not always be true.88 Unless a lawyer is taking the rare civil rights case on the side of a different kind of practice, the lawyer can make a living only if occasional clients win sizeable judgments. But juries have been known to award trivial sums, even in cases of serious misconduct.89 While some cases do yield large judgments,90 the overwhelming majority of practicing lawyers have no interest in representing civil rights plaintiffs who are unable to pay hourly bills. Many would-be plaintiffs with credible claims of unlawful searches and seizures, including police brutality and wrongful shootings, often cannot find lawyers to bring their cases.

Second, even if a plaintiff wins a court ruling that police violated his constitutional rights, he may be denied monetary compensation under the doctrine of “qualified immunity.” Under qualified immunity, a defendant need not pay monetary damages unless her conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known. In other words, even if a court finds that the defendant violated the plaintiff’s constitutional rights, the plaintiff cannot recover unless the defendant’s behavior violated “clearly established” law.