Arbitrary Law Enforcement is Unreasonable: Whren's Failure to Hold Police Accountable for Traffic Enforcement Policies

Abstract

A core mistake in Whren v. United States is the Court’s failure to hold police accountable for their own enforcement policies and practice. The Whren Court found itself at loss to imagine a world in which police would be constitutionally prohibited from making a traffic stop in the face of clear evidence that a traffic violation had in fact occurred. The Court’s error was its unspoken decision to evaluate police conduct against the written traffic code, as opposed to evaluating police conduct against police enforcement practices.

In other contexts, the Court has recognized that arbitrary intrusions into privacy are unreasonable under the Fourth Amendment. When the police consistently choose to enforce the law — here, the traffic code — by using standards different from those written into the code, then the appropriate baseline for assessing the reasonableness of police conduct is by evaluating that conduct against the police department’s own chosen enforcement practices and policies. Pretextual stops for traffic violations that ordinarily would not trigger police enforcement are arbitrary, and therefore unreasonable. Ignoring police enforcement practice represents a failure to hold police to the standards that police create themselves, resulting in a clear practice of arbitrary — and thus constitutionally unreasonable — policing.

Keywords: Fourth Amendment, pretext, law enforcement, arbitrary, Whren

JEL Classification: K42