An Unreasonable View of the 4th Amendment

STANFORD â€”  Picture this: Returning home from soccer practice with her two young children, a mother slowly drives her pickup down a quiet street. A cop notices the car’s occupants are not wearing seat belts, and pulls the vehicle over. Yelling at the mother as he approaches, he scares the kids. He tells her that she is going directly to jail, and refuses to allow her first to take the crying youngsters to a neighbor’s house. As the incident unfolds, friends arrive and shepherd away the youngsters. The policeman proceeds to search the truck (finding nothing), handcuff the mother, put her in his car (without seat belts) and haul her to the station, where she is booked and placed in a jail cell for an hour. She posts bond and is released, only to find that her pickup has been towed away. Eventually, she pleads guilty to the seat-belt infraction, and pays the maximum fine of $50.

This is what Gail Atwater said happened to her in Lago Vista, Texas, in 1997. She sued the cop and the city for damages, claiming violations of her 4th Amendment right to be free from unreasonable searches and seizures. Last week, the U.S. Supreme Court, by a 5-4 vote, ordered that her lawsuit be dismissed because her allegations did not add up to a constitutional violation.

Justice David Souter’s opinion for the majority is learned and lawyerly. It provides a magisterial exposition of early English and American cases and commentary concerning warrantless arrests for petty offenses. It surveys a broad range of modern legal scholarship, including some of my own. But it misses the point: The cop’s alleged behavior was obviously unreasonable and thus unconstitutional.

Why jail a resident who was no flight risk, given that the underlying infraction itself could not be punished with jail time? Why the handcuffs? The yelling? The truck search? Each of these aspects compounded the intrusiveness of the overall encounter; none was justified on the facts of the case. At oral argument, Justice Anthony Kennedy maintained that, “It is not a constitutional violation for a police officer to be a jerk.� Perhaps not, but it is a constitutional violation for a police officer to be unreasonable in seizing a person. This much should be clear from the opening words of the 4th Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.�

But what makes a search or seizure unreasonable? Many lawyers and judges have focused on the amendment’s remaining words, which discuss “warrants� and “probable cause.� On one reading of the amendment, any search or seizure lacking a warrant or probable cause is unreasonable and thus unconstitutional (except perhaps in emergency). But the amendment does not quite say this; and history emphatically contradicts it. For example, officers for two centuries have generally been allowed to arrest a suspected felon without warrant, even if a warrant could easily have been obtained. The majority held that a similar rule should hold true for petty offenses: An officer does not need a warrant to make an arrest for a violation he has witnessed first-hand.

The court’s majority was on solid ground in insisting that a warrantless arrest is not automatically unreasonable. But Atwater didn’t need to prove this to prevail. All she needed to show was that, all things considered, her arrest was unreasonable: The cop acted in a disproportionate and unjustified way. Granted, the cop was justified in stopping--arresting, if you will--Atwater’s vehicle and temporarily detaining her to verify identity and issue a citation. But the other elements of the seizure--the handcuffing, the search, the jailhouse, and so on--seem obviously excessive given that the underlying seat-belt offense is treated so lightly by Texas law.

Indeed, on the stipulated facts, the court seemed to concede that Atwater was seized unreasonably. To quote from the majority opinion: “In her case, the physical incidents of arrest were merely gratuitous humiliations imposed by a police officer who was [at best] exercising extremely poor judgment.�

The problem, said the court, was that it would be hard to frame a general rule broad enough to protect Atwater, yet specific enough to give all future cops clear guidance. But two obvious candidates spring to mind: Full-blown arrests and jailhouse detentions could be deemed presumptively unreasonable where the infraction itself is punishable only by a petty fine or, more broadly, where arrests and detention are very far from standard police practice for a given offense. Under either version, an officer would be allowed to point to some special circumstance (such as some unusual danger) to justify his heavy-handedness.

More generally, the Constitution does not require the court to frame a general rule for every conceivable fact pattern. The genius of the framers’ 4th Amendment is that juries of ordinary Americans can sometimes decide which intrusions are so unreasonable as to require abusive officers to pay damages. The landmark English search-and-seizure cases that inspired the framers were themselves civil-damage suits where juries helped determine whether government officials had acted reasonably. The amendment’s very text suggests the importance of popular input on the question of reasonableness by describing the right against unreasonable intrusion as a right of “the people.� Elsewhere in the Constitution, the words “the people� conjure up themes of popular sovereignty and public opinion. An early draft of the 7th Amendment, which safeguards jury trials in damage suits like Atwater’s, described the jury as “one of the best securities of the rights of the people.� The striking linguistic harmony between this draft and the 4th Amendment--both speak of the “right of the people� and use the language of “security�--confirms the founding link between civil juries and 4th Amendment reasonableness.

Granted, many issues might be unfit for jury determination, requiring judges to frame bright-line rules that cops may never do this and must always do that. But surely there is a middle category of cases where the search issue is more fact-specific and fine-grained: Did this officer act reasonably in this situation, all things considered? The facts of Atwater seem tailor-made for a jury decision, yet the court arrogated the issue to itself.

It might be feared that juries will be too hard on the cops or, alternatively, too insensitive to plaintiffs. But jurors standing between the aggrieved citizen and the accused officer are often poised to strike a sensible balance between liberty and order. If they unreasonably handcuff the cops, their community will suffer; and if they allow the cops to handcuff citizens unreasonably, they are likewise putting themselves at risk. Damage suits like Atwater’s can educate jurors about actual police conduct and encourage police officers to internalize the norms of the citizens they are called to serve. Juries can foster a kind of community-based policing, providing interactive feedback between the citizenry and officialdom. As the officer was slapping the cuffs on Atwater, society should want him to be asking himself, “Could I justify my behavior here to the civilian community?�

Juries can make mistakes, but so can judges. One of the Rehnquist court’s trademark mistakes has been to inflate its own role at the expense of other, more democratic institutions empowered by the Constitution. Article II gives key roles in deciding presidential elections to Congress and state officials, but the court snatched power to itself in Bush v. Gore last December. The Reconstruction amendments explicitly empower “Congress� to enforce them, yet the Rehnquist court has struck down a slew of congressional civil-rights laws in recent years--every one of these invalidations an unjustified assault on a coequal branch. In its latest decision, the court similarly gave insufficient thought to the possibility that someone other than itself--in this case, a jury of ordinary Americans--might be trusted to do the right thing.