From the WSJ Opinion Archives
CITIZEN OF THE WORLD
The Social Contract Buckles
The Supreme Court wrongly authorizes cops to act like jerks.
Under the present chief justice, the U.S. Supreme Court rarely gets things wrong. This is because an unmawkish core--with Chief Justice William Rehnquist as marshal and Justice Antonin Scalia as mapmaker--has ensured that its rulings are almost always rooted in sturdy good sense. The court's approach to constitutional and statutory interpretation is marked by methods that are neither overly sympathetic to "big" government nor notably sentimental about the "little" individual.
This is a good balance, especially when allied to the majority's partiality to states' rights, as well as to its constructionist bent, and it ensures that the court's rulings are seldom faddish.
A ruling last week, however, in the case of Atwater v. Lago Vista, should be of immense concern. Atwater, in my estimation the poorest decision handed down by the Rehnquist court, is the closest that court has come to getting things totally wrong. The case is on its face a more likely candidate for liberal infamy. But conservatives would err if they failed to denounce the ruling, for the court's majority has shown a perilous disregard for the terms of that tacit social contract under which Americans surrender a portion of their liberty to the police and other law-enforcement agencies.
That surrender is not made for nothing; in exchange for a capping of their liberties, Americans expect the police to abide by, and bow to, restrictive norms as well, norms that are grounded in a citizen's expectation from a police officer of unwavering decency, moderation and self-control. In short, Americans consent to be bound by laws on the understanding that those who would enforce those laws act neither arbitrarily, nor capriciously, nor with disproportionate force, nor with malice. This trade-off lay at the heart of Atwater, and the court blotted its copybook badly by failing to side with an individual whose liberties were curtailed by a high-handed, even imperious, policeman.
The facts, in brief: One evening in March 1997, Gail Atwater, a "soccer mom" from Lago Vista, Texas, was driving home at 15 miles an hour with her two children, three and five years old, seated in the back of her pickup. A cherished toy had been lost along the way, and the three--mother, daughter and son--were scanning the residential road for the object. None of them were wearing a seatbelt (though the kids had been belted in, until their mother allowed them to unbuckle themselves and sit by her in the front so they could look for the toy). There was no other traffic in sight.
Officer Bart Turek observed their seatbeltless state and pulled them over. He shouted aggressively at Ms. Atwater, saying, "You're going to jail." The pitch of his voice upset the children, who began to cry; when their mother asked him to calm down so as not to distress the children, he jabbed a finger in her face and persisted with the shouting, including the order that she come with him to the station. He refused her request to be allowed to drop her children home first, and had it not been for the unexpected arrival of a neighbor--who took charge of Ms. Atwater's children--Mr. Turek would have carted them off to the station too.
The children were, by this time, frightened, very upset and crying piteously. Nonetheless, they were not spared the sight of their mother being handcuffed, with her hands behind her back, and pushed into a police car. (Ironically, Mr. Turek neglected to buckle her seatbelt for her.) At the station, she was asked to remove her shoes, jewelry and eyeglasses, and empty her pockets, which was followed by the taking of a mug shot. She then spent an hour in a jail cell by herself, before being produced before a magistrate, who released her on a $310 bond. To compound her misery, her pickup was towed away.
Ms. Atwater pleaded no contest and was fined. Under Texas law, the failure to wear a seatbelt, or to secure children in the front seat, is a misdemeanor, punishable only by a maximum fine of $50. There can be no confinement on conviction. The statute does permit the arrest, without warrant, of anyone violating the seatbelt law, but the police may--and, as a rule, do--issue citations in lieu of arrest.
The central question raised by Ms. Atwater was whether her arrest was in breach of the Fourth Amendment, which prohibits any violation of "the right of the people to be secure in their persons . . . against unreasonable . . . seizures." More generally, her case raised the question of whether the Fourth Amendment forbids a warrantless arrest for a misdemeanor punishable only by fine. In plain words, can you be held in detention, however briefly, before you are convicted of an offense for which you cannot be held in detention?
The gravity of these questions, and the implications for individual liberty, ensured that the case would reach the Supreme Court on appeal from a federal appeals court, which ruled, by an 11-6 majority, that "when probable cause exists to believe that a suspect is committing an offense, the government's interest in enforcing its laws outweighs the suspect's privacy interest."
The Supreme Court ruled against Ms. Atwater, by 5-4. Writing the opinion for the majority, Justice David Souter (who does not often find himself on the same side as Justices Rehnquist, Scalia, Anthony Kennedy and Clarence Thomas) wrote: "The Court rejects Atwater's request to mint a new rule of constitutional law forbidding custodial arrest, even upon probable cause, when conviction could not ultimately carry any jail time and the government can show no compelling need for immediate detention." Ms. Atwater had argued that every arrest of the sort she endured must be subject to traditional standards of reasonableness, and Justice Souter even conceded that, so far as her case was concerned, "her claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise . . . specific to her."
But instead of finding a way to frame an exception to the rule permitting arrest--an exception that would have vindicated Ms. Atwater's right to lead a life free from tyrannical policing, while safeguarding the administrative convenience that the police need, for sure, from a rule that accords a broad right to arrest--Justice Souter wrote that "a responsible Fourth Amendment balance is not well served by standards requiring sensitive case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review" (my italics).
This inability to grapple with the formulation of an exception that might protect the Atwaters of America from its Tureks is a startling confession of judicial impotence, especially when the refusal to contemplate such an exception is justified by the statement that "there simply is no evidence of widespread abuse of minor-offense arrest authority" by the police.
But does this make sense? The majority holds back from framing an exception to a broadly permissive arrest rule for fear that such arrests would turn many normal arrests into occasions for lawsuits; yet it states, in the same breath, that there is no evidence that the Atwater type of arrest is at all common. So how, then, would a judgment for Ms. Atwater send the whole edifice crumbling down?
The bottom line, of course, is this: The Supreme Court's position "is inconsistent with the explicit guarantee of the Fourth Amendment." The words are those of Justice Sandra Day O'Connor, and are taken from her stirring dissent (in which Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer joined). Here is what she wrote: "A full custodial arrest, such as the one to which Ms. Atwater was subjected, is the quintessential seizure. When a full custodial arrest is effected without a warrant, the plain language of the Fourth Amendment requires that the arrest be reasonable."
There was nothing reasonable about Mr. Turek's arrest of Ms. Atwater. Even the lawyers for Lago Vista refrained from defending his behavior in their oral arguments, in the course of which Justice Kennedy described Mr. Turek as a "jerk."
It should be pointed out that Justice Kennedy's full utterance was: "It is not a constitutional violation for a police officer to be a jerk." But why not, if the context is right? Why did the court shrink from a reading of the Fourth Amendment that is more generous to the citizen? After all, no self-respecting court would abridge citizens' rights in the same way if the amendment under scrutiny were the First.
So why is the plain language of the Fourth--that no warrantless seizure be "unreasonable"--interpreted in a manner in which even the most autocratic and, yes, jerkish, arrest--such as that of Ms. Atwater--is not regarded as unreasonable? "Justifying a full arrest by the same quantum of evidence that justifies a traffic stop, even though the offender cannot ultimately be imprisoned for her conduct, defies any sense of proportionality and is in serious tension with the Fourth Amendment' proscription of unreasonable seizures," wrote Justice O'Connor.
So, in search of clarity, and a trouble-free rule, the majority was willing to countenance the humiliation of a mother whose contribution to society had, until that point, been only positive. In doing so, they inflicted damage on a precious social contract.
While a constitutional right to "jerk-free policing" might be hard to frame, there can be no denying the existence of such a moral right. Law-enforcement officials enjoy wide-ranging immunities, and are almost always, where there is contention, given the benefit of the doubt. An officer's word, or version of events, is not easily questioned or subverted, and that state of affairs is broadly good for civil society. But as a quid pro quo, the police have promised society their fullest respect, and given a guarantee to act always with rectitude.
That is the civic compact we have, and that undertaking by the police--that promise not to behave like jerks, and not to treat citizens with contempt or disrespect--is the foundation on which the state has our support in its efforts to enforce law. This is the basis of the alliance that exists between citizens and police officers. They operate with our consent and trust, and for our benefit. When they cease to act in our interests, which are the interests of the community, they run the risk of losing our trust. Inevitably, they will also lose our consent.
That is why Atwater is so important, and why the Supreme Court got things so utterly wrong. The police serve the citizens' interests, not vice-versa. Mr. Turek was an officer who forgot the terms of our social contract. It's a shame that the Supreme Court appears to have forgotten them, too.
Mr. Varadarajan is deputy editorial features editor of The Wall Street Journal. His column will appear Fridays during May.
