ANNOY NO COP.

• Author: Bowerst, Josh
• Position: ARTICLE

The objective of the legality principle is to promote autonomy by providing individuals with opportunities to plan courses of conduct free from state intrusion. If precise rules are not prescribed in advance, individuals may lack notice of what is prohibited and may be subjected to arbitrary treatment. Thus, the Constitution commands that legal officials honor formal terms of engagement and limit enforcement efforts to narrowly defined crimes. But, under pressing conditions, the prevailing rules may prove too rigid, compelling courts to carve out post hoc exceptions. As a matter of practice, these exceptions tend to operate asymmetrically--benefiting the state only. This Article uses Fourth Amendment doctrine to examine that asymmetry.

I coin the term "meaningful understanding" to describe the functional Fourth Amendment methodology by which courts sometimes accommodate law-enforcement needs, fears, and even mistakes. The enterprise is admirable, but there is a dark side: a judge cannot understand meaningfully a reasonable officer in his particular situation without concurrently tolerating an otherwise impermissible intrusion upon autonomy. The officer enjoys a piecemeal exception that the individual experiences as a piecemeal (and often unanticipated) burden. In this way, meaningful understanding works to excuse unexpected coercion. The individual is left unfairly surprised--unable to plan a law-abiding life consistent with the promise of the legality principle.

This troubling state of affairs arises most often in the context of order-maintenance policing. Street encounters are fast-moving and understandably unpredictable. In such circumstances, officers may end up deviating unforeseeably from the usual rules, confounding the capacity of pedestrians and motorists to comprehend the scope of state power and the quality of individual rights. We need not look far to find tragic real world examples. I discuss several, including the traffic stop and arrest of Sandra Bland, a motorist whose subsequent death in a jail cell became a focus of the legal and social justice movement known as "Black Lives Matter."

The jurisprudential path forward, however, is not to command greater fidelity to formal Fourth Amendment rules, but instead to try within limits to understand much more. In this vein, Jeremy Waldron has described a "procedural" conception of legality, characterized by "modes of argumentation" capacious enough to bring all reasonable sides of the story to bear. The goal is ambitious. But the Article concludes with a modest and viable set of doctrinal reforms to better pursue meaningful understanding--articulated and evaluated bilaterally.

It wasn't only wickedness and scheming that made people unhappy, it was confusion and misunderstanding; above all, it was the failure to grasp the simple truth that other people are as real as you. And only in a story could you enter these different minds and show how they had an equal value. That was the only moral a story need have. IAN MCEWAN, ATONEMENT (2001)

Introduction 131 I. Legality, Autonomy & Authority 142 A. Precision & Planning 142 B. Conduct Rules as Cop Rules 147 C. Dynamic Conduct Rules 149 II. Legality & Sovereignty 151 A. Reasons & Reasonableness 153 B. Precision & Pretext 155 III. Exceptions to Conduct Rules. Exceptions as Conduct Rules? 157 A. Understanding the Methodology 158 B. Understanding the Exception 160 IV. Understanding the Police 163 A. Mistake 163 B. Fear 168 C. Need 174. V. Understanding Procedural Legality 179 A. Legality, Understanding & Rough Justice 182 B. Understanding & Narrative 180 C. Understanding & Craft 108 D. Understanding Understood ? 206 Conclusion 210 INTRODUCTION

I like to ride my bike on the sidewalk, to let my dog run free, to spend warm afternoons in the park with a cold beer. But, obviously, I may not be allowed to do these things. The state manages my existence in public spaces. It picks sides. By constraining my autonomy to do what I want to do with my bike, pet, and intoxicants, the state has created an environment in which another individual may enjoy the outdoors without dodging dogs and bikes, without smelling stale beer. This is the story of order-maintenance enforcement. (1) As the name implies, it is a story of state ordering. The state forces me to trade disordered autonomy for engineered autonomy--autonomy within state bounds. (2)

In a liberal criminal justice system, the exchange may be considered fair enough, even before we appeal to some invented notion of the social contract. (3) Liberalism presupposes certain checks on the manner by which the state manufactures order--checks intended to ensure, at a minimum, that offenses are promulgated and enacted prospectively and plainly. (4) The objective, here, is not only to provide the public with notice of proscribed conduct but also to limit the state's arbitrary exercises of power. (5)

The principle of legality is the name given to this requirement that offenses be previously and precisely defined. In our criminal justice system, it finds expression through a series of "bulwarks" designed to promote notice and to protect against arbitrary and capricious enforcement--constitutional rules against, for instance, ex post facto laws and vague offenses. (6) The rule of lenity may also be understood as legality's effort--in the face of constitutionally tolerable statutory ambiguity--to give the benefit of the doubt to the individual whose liberty is threatened by conviction and punishment. Even burdens of proof (and the presumption of innocence more generally) operate on a like notion that--unless and until the state can demonstrate otherwise--the rights of the individual against the coercion of the criminal law ought to trump the instrumental needs of the state. (7)

Of course, this idea of notice is no more than a fiction for a number of well-examined reasons. Holmes' "bad man" does not pore over penal codes, (8) and public-order offenses are mala prohibita only. (9) Accordingly, even the "good" man--the man who wishes only to do the right thing--may lack "social duty" notice that the state has proscribed criminally some instance of state-determined disorderly conduct. (10) When it comes to public-order offenses, the notion that "everyone is presumed to know the law" carries comparatively less weight than when our criminal codes approximate a shared morality. (11) Moreover, law enforcers have no shortage of public-order offenses from which to choose, leaving some only seldom or selectively enforced. (12) In such circumstances, even a diligent study of the law may reveal only so much about whether, when, where, and how police officers might concentrate their energies. And, to the extent the individual guesses right, her predictions often have less to do with binding legal codes than with sociopolitical, economic, and cultural forces and considerations--some, normatively defensible; others, less so. (13)

This is a pessimistic picture. But it is not new. In the past two decades, there has developed a rich literature on "overcriminalization," which catalogues the difficulties of predicting state action based on even precisely defined public-order offenses. (14) There are also some scholars who have examined the intersection that intrigues me most here--the manner by which Fourth Amendment doctrines have contributed to the shortcomings of code law. In this Article, I rehearse some familiar observations--most notably, the failure of the Fourth Amendment to adequately check pretextual searches and seizures. (15) But my principal aim is to identify, analyze, and criticize an under-appreciated and counterintuitive way in which Fourth Amendment doctrines have operated to obscure the individual's capacity to forecast what she can and cannot do, free from state intrusion.

Imagine that an officer hopes to arrest me for drinking alcohol in the park. The principle of legality ostensibly dictates that he needs an applicable valid statute and sufficient proof of guilt, which the Supreme Court has defined as probable cause. (16) Or does he? The Court has carved several exceptions to its purportedly hard-and-fast Fourth Amendment rules. Most notably, it has held that an officer may get things wrong yet remain on the right side of the Fourth Amendment. He may make a reasonable mistake about the facts that he relies upon to establish probable cause. He even may err about the scope of the criminal law itself (which is, paradoxically, the kind of mistake almost wholly unavailable to an untrained layperson). (17)

Consider a few twists to the hypothetical. Suppose that the law has changed such that the open-container ordinance in question no longer applies to a container of alcohol wrapped in a paper bag. Moreover, suppose that my paper bag suitably conceals my container such that the officer mistakes a flash of the red exterior of my alcohol-free Coca-Cola for a Budweiser beer. If the officer's legal and factual mistakes are deemed reasonable, then his conduct--the arrest--is constitutional. In turn, I am subjected to a different constraint. As I read it, the operative rule is no longer defined exclusively by statutory language (simplified to the following): In public, possess no open containers of alcohol. It is defined also by the officer's perspective and practice: In public, possess no open containers of something that an officer reasonably could believe to be alcohol (even if it is not) in a manner he reasonably could believe violates the law (even if it does not). The end result is that the officer has the opportunity to arrest me with neither sufficient proof of a criminal act nor even an applicable criminal statute. My autonomy is constrained by the reasonable officer's belief, evaluated from his perspective. Put differently, the arresting officer's reasonable belief constitutes an extenuating circumstance sufficient to excuse him from legality's usual rules.

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