First, it would be better (for search and seizure law as a whole) that this opinion was never written even if no civil suit were ever brought.

Second, victorious plaintiffs’ attorneys can get paid in section 1983 suits, so sometimes plaintiffs do bring them and seek minimal damages. For Example, last week the Huthnance v. DC case came out. The court’s opinion (dated July 19, 2011) quoted some of what Huthanance’s attorney said at her trial:

Second, even if the argument wasn’t waived, it lacks merit. At closing argument, Huthnance’s counsel stated, “you’re going to hear that [Ms. Huthnance] doesn’t care about whether you give her $1 or $1 million. What she cares about is reclaiming her name and her reputation and not having an arrest record. . . .” Mar. 23, 2011 P.M. Trial Tr. 11. Later he said:

[Huthnance] would tell you . . . the money isn’t what matters, the money isn’t what matters. If you want to give her a dollar, if you want to give her a hundred dollars, if you want to give her $10,000, if you want to give her $100,000. What matters is a judgment in her favor for some monetary relief that shows that yes, her constitutional rights were violated. Yes, her right to not be falsely arrested was violated. We ask you to return a verdict on every single count in her favor. If it’s only for a dollar, if it’s for a thousand dollars, I ask you for a hundred thousand dollars, cumulatively. And I thank you for all of your attention in this case.

(btw, the jury decided to award Huthnance $90,000 for her false arrest and night in the slammer — sad that this case hasn’t made it to the net — opinion worth reading in its entirety — as is the June 22, 2011 sanction opinion in the case which is on the net, but doesn’t explain what the case is really about). It isn’t always about the money, and there is fee shifting under the current system anyway.

Third (AND THIS PART IS THE MOST IMPORTANT): civil remedies and/or legislative remedies (preferably the latter) need to be changed and beefed up. Section 1983 was written in the 1880s and has grown a layer of extra-legislative crud on it (as I know you know). There are much more sensible answers to the illegal search and seizures of the innocent than by handling the issue through costly winner-take-all lawsuits. But these reforms will not come about unless and until the “fig leaf” of the Exclusionary Rule goes away. There needs to be a disruptive event to make the good, overdue changes happen. Pulling the Exclusionary Rule is exactly the way to make these changes happen. Jolt to the system needed here.

If these defendants had been innocent, they wouldn’t be “defendants,” and there would be no criminal charges for them to contest. You could argue that they could bring a civil suit, except that police have qualified immunity, so the suit would be thrown out shortly after it was filed. Moreover, the damages for a wrongful search that doesn’t lead to an arrest are likely too small for any attorney to take up such a suit.

Full opinion (rather dispiriting) here:

http://www.leagle.com/xmlResult.aspx?xmldoc=In%20CACO%2020110725021.xml&docbase=CSLWAR3-2007-CURR

By the way, if you are reading the comments, Mr. Balko, this is a stone classic case of the Exclusionary Rule indirectly, but forcefully, causing rights against search and seizure to be curtailed. If this had been a case brought by innocent people then Judge Robie would almost certainly have done a better job analyzing whether the dog was reliable, and indeed found him to be unreliable.

I have a simple proposal for reform: scrap the murder statutes on the books and rewrite them. Two classes of homicide: accidental homicide and murder. Accidental homicide would encompass homicides caused by legal, but extremely negligent behavior that a reasonable person would know could create a risk of fatal harm. Murder would be everything from severe misdemeanor criminal negligence leading to death, to felony murder, to what we now call murder in the first degree. It would all carry the same punishment, life imprisonment or execution with the defendant being permitted to choose which one they prefer at conviction time.

Under that sort of regime, unless a woman like Anthony really did harm her child accidentally, she’d face the sort of swift punishment people want.

http://www.oregonlive.com/pacific-northwest-news/index.ssf/2011/07/washington_appeals_court_vacates_skamania_county_conviction_in_brutal_cross_country_skier_beating.html

I used to wonder why this country’s legislative and judicial branches were staffed with such anti-civil libertarian, openly-contemptuous-of individual rights authoritarians.

The answer is quite simple: The bulk of our citizens are likewise.

So whatever rational arguments you make, they matter not one bit. We will have this law soon. It’s not even worth the effort to make an argument against it.

You don’t have to look far to witness the endless destruction of freedom in this country. I just did a cursory search today. Among other things I found:

-An Appeals Court says it’s just fine to draw and store DNA from anyone arrested (not charged or convicted):

http://www.csmonitor.com/USA/Justice/2011/0725/Federal-court-If-you-re-arrested-officials-can-take-a-DNA-sample

-Another district appeals court says a dog ‘alerting’ to your backpack is probable cause for a warrant, even though your bag contained only chemicals that the drug dog was not trained to detect. (Which any rational judge would conclude means that the drug dog doesn’t actually ‘detect’ anything):

http://www.appeal-democrat.com/news/marysville-108642-appeal-dog.html

Sometime next year, the Supreme Court will say that it’s fine for the government to track your car anywhere, for no reason.

Freedom is dead, it’s just a matter of how deep it will be buried. And I am sorry to say that it appears to me that writing articles and talking to people is never going to bring it back.

What attentive parent would intentionally wait to report their child missing?

Am I an evil person because this makes me think of O. Henry’s classic story “The Ransom of Red Chief”?