Constitutional law in an age of proportionality.

Author:Jackson, Vicki C.
Position:III. Benefits of Proportionality Review for U.S. Constitutional Law through IV. Objections and Responses, p. 3130-3166

    In this Part, I argue that in at least two areas of constitutional law, greater reliance on proportionality would beneficially enhance the protection of individual rights. Working from the facts to the law in the common law tradition, Part A considers recent Fourth Amendment case law in which the Court rejected arguments that arrests, or searches related to pretrial detention, should be limited by proportionality principles, and it contrasts such decisions with Canadian case law. Part B explores how the absence of a "proportionality as such" inquiry diminishes the force of U.S. rules against content-based regulation under strict scrutiny, using Humanitarian Law Project as an example. Finally, Part C advances some more general, theoretical arguments for increased use of structured proportionality review and proportionality as a principle in constitutional adjudication.

    A. Regulating Police Behavior Under Constitutional Norms

    1. Atwater v. City of Lago Vista and Fourth Amendment Case Law

      In Atwater v. City of Lago Vista, (163) the Court found no Fourth Amendment violation in the arrest of a motorist for a non-jailable traffic offense. (164) Atwater was driving her two young children in their neighborhood when she was stopped by a police officer for not wearing her seatbelt and not having her children in seatbelts. (165) Arresting Atwater, the officer denied her request to ask a neighbor to care for the children, indicating that he would bring them to the police station. (166) Atwater's hands were cuffed behind her back; she was placed in the back of the police car--without a seatbelt--and driven to the station. (167) She was released about an hour later, paid a $50 fine for the seat belt offense, and discovered her car had been towed. (168) She sued for damages, including distress-related medical costs for herself and one child. (169)

      The Court described the police officer's conduct in arresting the motorist as involving "merely gratuitous humiliations" and inflicting "pointless indignity and confinement." (170) Indeed, the Court wrote, her claim "clearly outweighs anything the City can raise against it specific to her case." (171) Acknowledging that "[i]f we were to derive a rule exclusively to address the uncontested facts of this case, Atwater might well prevail," the Court noted that Atwater was an "established resident of Lago Vista with no place to hide and no incentive to flee, and common sense says she would almost certainly have buckled up as a condition of driving off with a citation." (172)

      Yet the Court rejected Atwater's Fourth Amendment challenge: history suggested and functional concerns required that police officers be treated as having lawful discretion to arrest for any offense with probable cause. (173) To hold otherwise, according to the Court, would impose unwarranted burdens on police officers of knowing details of criminal codes and anticipating likely charging decisions, thereby creating incentives to under-enforce criminal law by officers making split-second decisions. (174) (A similar structure of analysis is found in Florence v. Board of Chosen Freeholders, (175) involving visual strip and cavity searches at pretrial detention facilities. (176))

      If a case like Atwater had arisen in Canada, the first question the Canadian Court would likely have addressed is whether the plaintiff had interests protected by the provisions analogous to the Fourth Amendment. (177) The first question in fact addressed by the Atwater Court was the scope of common law authority to make an arrest. (178) Had the U.S. Court followed the structured proportionality review approach, it would have considered whether Atwater's interests were within the scope of interests protected by the Fourth Amendment before going on to consider whether the search or seizure was justified, that is, reasonable. The amendment's text plainly suggests that searches and seizures must be reasonable. It provides: "The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause...." (179) The U.S. Supreme Court did not conduct its analysis in this order. Moreover, it did not address potential harm to Atwater's children. (180)

      Whether "the people" can feel "secure in their persons" knowing that any traffic infraction can result in their being jailed deserves more attention. Justifications that sound only in authority, based on common law practice, are not so persuasive to the modern ear; and proportionality tests do not stop with the question of authorization. (181) The Court's methodology, which defined the rights at stake only in relation to an ambiguous common law history and its analysis of the government's interests, left an essential aspect of the question under-explored.

      The Atwater Court did engage in some balancing or weighing of government needs in deciding between a case-by-case or rule-based approach, and it chose a categorical rule. The Court treated police officers as needing prophylactic protection, reasoning 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." (182) The Court made empirical judgments --concerning the supposed dearth of abusive arrests and the need to avoid "a systematic disincentive to arrest"--in order to strike "a responsible ... balance" through its categorical rule. (183)

      As the dissenters argued, qualified immunity doctrine already protects officials from monetary liability under unclear legal standards. (184) Some focus on the proportionality of the officer's conduct, examining the reasons for this conduct, would have little potential for interference with law enforcement and would better protect citizens' rights to be secure in their persons. (185) Yet the Court offered little discussion of the scope of the interests protected by Fourth Amendment rights or of why the police officer did not use less restrictive alternatives reasonably available to him; its suggestion that the political process could control abuses, (186) and its reference to a possibly different approach in "extraordinary" circumstances, (187) left the decision only partially justified and partially transparent.

    2. A Canadian Comparison

      For comparison, let's turn briefly to a recent Canadian decision (188) concerning the Canadian Charter's constitutional protections of the "right to be secure against unreasonable search or seizure" (189) and "the right not to be arbitrarily detained or imprisoned." (190) In Aucoin, a Canadian police officer made a traffic stop because of a license plate irregularity; on questioning the nineteen-year-old driver, the officer found that he had consumed alcohol in violation of traffic laws prohibiting new drivers from drinking. (191) Having decided to give the driver a ticket, the officer also decided to place the driver in the back of the police car while he wrote up the citation. (192) For safety reasons, the officer conducted a pat-down search before putting the driver in the back of the patrol car and during that search discovered illegal drugs. (193) The parties and the Court agreed that the initial detention of the driver in the traffic stop was lawful. The question was whether the decision to put the driver in the back seat of the patrol car was a reasonable exercise of the authority to detain. (194)

      In the Canadian Court's words, the issue was not whether there was authority to detain, but whether the officer was justified in exercising the authority as he did. (195) It was the "shift in the nature and extent of ... detention" for "two relatively minor motor vehicle infractions" that created the constitutional violation. (196) Placing the driver in the back seat of the police car, especially with the accompanying pat-down, "increased restrictions on the appellant's liberty interests ... [and] altered the nature and extent of the appellant's detention in a fairly dramatic way--especially when one considers that the infractions for which he was being detained consisted of two relatively minor motor vehicle infractions." (197) Given the minor character of the offense, the decision to detain in the car did not meet the test of being "reasonably necessary" under all the circumstances, and so the detention and accompanying pat-down were not constitutional. (198) The Canadian Court was unanimous in this holding. (199)

      Canadian law thus adopts an alternative approach, insisting on a more case-by-case approach to examining whether a police authority has been exercised in a reasonable and proportionate way. (200) A comparison with Atwater suggests that some form of more individualized proportionality analysis may produce decisions that are both better reasoned and more protective of rights than the "categorical approach" employed by the U.S. Court. (201)

      R. "Strict Scrutiny" and the First Amendment

      The First Amendment is an area in which U.S. law is typically described as being based on presumptive or definitional categories. (202) Would U.S. First Amendment law be improved by more attention to proportionality? If, for example, in applying the categorical presumption against content-based regulation, courts used as an additional test the question of "proportionality as such" from structured proportionality doctrine? Or if, in defining exemptions from the categorical presumption against content-based regulation, more attention were given to the principle of proportionality? To begin to answer these questions, consider first the Court's recent decision in Holder v. Humanitarian Law Project. (203)

      The case involved a challenge to a criminal statute prohibiting material support to designated terrorist groups. The challenge was...

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