The Fourth Amendment and the Problem of Social Cost

Thomas P. Crocker | October 9, 2022

The Supreme Court has made social cost a core concept relevant to the calculation of Fourth Amendment remedies but has never explained the concept’s meaning. The Court limits the availability of both the exclusionary rule and civil damages because of their “substantial social costs.” According to the Court, these costs primarily consist of letting the lawbreaker go free by excluding evidence or deterring effective police practices that would lead to more criminal apprehension and prosecution. But recent calls for systemic police reform by social movements have a different view of social cost. So too do calls for reforming qualified immunity. Police illegality—the precondition for exclusion or damages— itself produces substantial social costs, especially when one considers the systemic effects of minor illegality on a community-wide scale. The Court does not currently take account of these social costs, raising the question: why not? Taking a cue from Professor Ronald Coase’s famous analysis of the problem of social cost, this Article analyzes why it is necessary for the Court to refocus its social cost inquiry to include pervasive and corrosive social costs external to its present doctrinal focus. Surprisingly, given its analytic centrality, neither the Court nor commentators have clarified what “social cost” entails or how to calculate it. This Article takes up this task and charts the unexpected implications that would follow if the Court were to take its own commitment to minimize “social cost” seriously.

Conceptions of social cost rely on choices of perspective and judgments about what counts as salient harms that necessitate a remedy. To date, the predominant perspective the Court takes in constructing and implementing Fourth Amendment doctrine is the policing perspective. This perspective is evident both when doctrine is applied to ordinary cases and when doctrine is shaped by using video evidence such as body-worn cameras that reinforces law enforcement’s perspective. The result of prioritizing a policing perspective is to focus on the harms produced by imposing the exclusionary rule or civil liability on law enforcement’s illegal acts, not upon the harms suffered by innocent individuals and broader communities. Such a narrow perspective is a problem because it constructs constitutional meaning in a way that excludes much of what scholars and the public take the Fourth Amendment to mean through the values it protects. Harms that flow from those citizens who are law enforcement officers—those empowered with the authority to search, arrest, employ violence, and use deadly force—that break the law may be particularly acute given the special role they play in political society. This Article articulates this concern as an inverted “broken- windows” analysis. Just as minor crime left unregulated within a community is said to produce greater social harm through the spread of lawlessness, minor illegality perpetrated by police left unregulated can produce greater social harm—with sometimes tragic effects—through police impunity. This latter possibility is insufficiently recognized in theory and practice. Through such internal criticism of Supreme Court doctrine, this Article begins from the Court’s own commitment to the analytic centrality of social cost when constructing the meaning of the Fourth Amendment through its exclusionary-rule and qualified-immunity doctrines and proposes additional perspectives necessary for more accurate calculations designed to protect constitutional rights and promote political community.