Probable cause, constitutional reasonableness, and the unrecognized point of a 'pointless indignity'.

• Author: Bowers, Josh
• Position: I. Quantitative Constitutional Reasonableness through III. Dignity as a Value and a Legal Principle, p. 987-1018

INTRODUCTION I. QUANTITATIVE CONSTITUTIONAL REASONABLENESS A. Criminal Law Exceptionalism B. Legality, Guilt Accuracy, and Positional Authority II. QUALITATIVE CONSTITUTIONAL REASONABLENESS A. Peacekeeping Particularism B. Particularism at the Peripheries III. DIGNITY AS A VALUE AND A LEGAL PRINCIPLE A. One Conception of Dignity (as Applied to Atwater) B. The Jurisprudential Point of a Pointless Indignity C. Dignity as a Fourth Amendment Principle IV. LEGALITY AS A SUPPLEMENT AND NOT A SUBSTITUTE A. Two Conceptions of Accuracy B. Two-Ply Reasonableness in Theory C. Two-Ply Reasonableness in Practice V. TWO-PLY REASONABLENESS AND THE RULE OF LAW A. Legalistic Constraints as Safe Harbors B. Misdemeanor Enforcement as a Domain of Choice C. The Limits of Legalistic Reform VI. OBJECTIONS A. Probable Cause as a Balancing Factor? B. Probable Cause as a Sufficient Proxy? C. Probable Cause as a Qualitative Measure? CONCLUSION INTRODUCTION

A police officer needs probable cause to arrest a suspect. (1) But once he has it, he typically needs no more. (2) It does not matter that the offense in question is one that almost never results in arrest or is punishable only by a small fine (or some other nonjail penalty). Pursuant to the Fourth Amendment, if a "fair probability" exists that the suspect is technically legally guilty, then the arrest is constitutionally reasonable--full stop. (3)

The Court announced this categorical rule in Atwater v. City of Lago Vista, a case involving the arrest of a young mother for failing to wear a seatbelt or to secure her two small children as she drove slowly through her hometown. (4) In affirming the lower court's dismissal of Gail Atwater's civil suit, the Court accepted her allegations that the arresting officer, Bart Turek, had berated her and frightened her kids, and that he had refused (without reason) to issue her a summons or citation in lieu of full-custodial arrest. Indeed, the Court called the arrest a "gratuitous humiliation[]" and a "pointless indignity." (5) Nevertheless, it held the seizure constitutionally reasonable for the sole reason that Officer Turek had probable cause. (6)

Over the years, several of my criminal procedure students have puzzled over how an arrest that served "no discernible state interest" could be at once a "pointless indignity" and also constitutionally reasonable. (7) My standard quip: the Constitution provides no protection against obdurate jerks and mean-spirited bullies. But why not? In this Article, I unpack that question and examine whether the Court's reasoning withstands scrutiny. In doing so, I intend to do much more than comment on a case. Instead, I use the Atwater decision as a starting point to examine the Court's prevailing Fourth Amendment methodology in law enforcement cases and to reveal the types of considerations that its methodology does and does not take into account. Specifically, when it comes to arrests, the Court has relied exclusively upon probable cause--a "quantitative standard of confidence"--to stand in for a "qualitative ... balancing of interests." (8) In this way, the Court has adopted a measure of technical legal guilt as a hard proxy for constitutional reasonableness. All else is read out.

In the pages that follow, I focus on one particular qualitative consideration that the Court's quantitative approach to constitutional reasonableness has missed almost completely. That consideration is dignity. Here, I recognize that I am about to wade into turbulent, hot waters. Dignity is no facile concept. To the contrary, moral philosophers, jurisprudes, theologians, and medical ethicists have devoted careers to the question of dignity's meaning. (9) The term is taken to be intuitive or structured, foundational or devoid of content. (10) Indeed, it is not even clear whether and how other concepts--like decency, indignity, or degradation--correlate with dignity. (11) Nor is it obvious whether dignity constitutes a value, principle, right, or something else entirely. (12)

All the same, a sophisticated definition of dignity may not even matter to the analysis. As Oscar Schachter observed, we need not fully theorize dignity to realize when it is offended: "[I]t has been generally assumed that a violation of human dignity can be recognized even if the abstract term cannot be defined. 'I know it when I see it even if I cannot tell you what it is.'" (13) More to the point, the Atwater Court knew it when it saw it: the Court labeled the arrest at issue a "pointless indignity" and a "gratuitous humiliation" (which I understand to mean a humiliation unsupported by nonarbitrary reasons). With respect to dignity, then, we can take the Court at its word. In any event, even the narrowest substantive conception of dignity is necessarily offended by some conduct. That is, for any positive or negative definition, there exists a transgression. But, after Atwater, that transgression--whatever it may be (and no matter how egregious)--almost certainly is unregulated by the Fourth Amendment.

It is not my claim, however, that dignity is or ought to serve as a foundational or exclusive Fourth Amendment principle. I maintain only that dignity ought constitutionally to count for something, (14) And, if dignity counts constitutionally for something, then a gratuitous humiliation, by its very nature, cannot pass Fourth Amendment muster because nothing remains to count against it. On this reading, dignity matters to a Fourth Amendment balance, but neither it nor probable cause (nor anything else) is all that matters. In this way, dignity is just a placeholder for any of many qualitative considerations of principle (think, for instance, proportionality, fairness, autonomy, and much more) or policy (think, for instance, public safety, order, and welfare, and much more) that a quantitative and legalistic conception of constitutional reasonableness has unjustifiably ignored. (15)

But why do I focus on dignity as opposed to another emblematic consideration? First, I focus on dignity because, normatively, I am committed to a conception of the Fourth Amendment that makes room for the value, and I wish to defend that position. Second, I focus on dignity because, descriptively, dignity is the value that Atwater's facts implicated squarely; and, as an expositional matter, the Atwater decision reveals (more so than most any other) just how constitutionally meaningless the Court has made any and all considerations beyond technical guilt accuracy. That is, if a gratuitously humiliating arrest is deemed reasonable with probable cause, then almost any arrest will be deemed reasonable with probable cause. Third, I focus on dignity because, positively, there emerges in the case law something of a fascinating juxtaposition between the Court's prevailing approach to (or disregard for) dignity and those small comers of Fourth Amendment doctrine where the value has continued to find traction. Specifically, in Fourth Amendment cases that are not about "crime-solving," the Court has endorsed an open-textured reasonableness balance and, more to the point, has recognized dignity as a principle relevant to that balance. (16)

In sum, my contribution is, first, to reveal why--in the crime-solving (or, as I call it, law enforcement) context--the Court has dispensed with dignity specifically and reasonableness balancing more generally; and, second, to detail why the Court was at least somewhat wrong to do so. Of course, I am not blind to the advantages of rules (and likewise of structured standards). Indeed, it is because 1 recognize that the legality principle occupies a special place within the criminal law that I endorse probable cause as a necessary but not sufficient rule-like threshold. (17) But, in the law enforcement context, the advantage of stand-alone dependence on probable cause is simply oversold. The Court's prevailing approach has not successfully eradicated unregulated sovereign choice. To the contrary, the Court has just moved sovereign choice indoors--into a defined legal box. (18) Within that box, the arresting officer remains almost free to pick and choose between probabilistic offenders and conventional enforcement means. (19) That is, the Court has traded context not for consistency but for a safe harbor, within which equitably and legally alike offenders may be treated unalike. (20) In such circumstances, fair notice and other rule-of-law values are turned on their respective heads: police have notice of what they may do, but the public has little notice of what police will do or won't do (or why). It is for this reason that the Atwater dissent warned that "[t]he per se rule that the Court creates has potentially serious consequences for the everyday lives of Americans." (21)

The Atwater majority was comparatively sanguine. It took it on faith that there is no "epidemic of unnecessary minor-offense arrests." (22) But the dissent had it right. In the age of order-maintenance policing, arrests for nonjailable offenses are, in fact, quite common. (23) In New York City, for example, the New York City Police Department (NYPD) has processed hundreds of thousands of full-custody marijuana arrests, often on noncriminal charges that, upon conviction, prescribed only penalties "akin to ... traffic ticket[s]." (24) Personally, I have represented hundreds of people for hopping turnstiles, possessing small amounts of marijuana, and stealing food to eat--charges that rarely result in jail time. I have represented individuals for the unlicensed sale of socks and t-shirts. I have represented sixteen-year-old girls for selling themselves. It is not my position that police officers should have declined all or most (or even many) of these arrests--only that arrests for such petty crimes depend on value judgments in ways that arrests for serious crimes do not (25) And with such a large sample size--and under prevailing institutional conditions that favor arrest (in...