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

24 Pages Posted: 22 Oct 2016 Last revised: 7 May 2018

See all articles by Jonathan Witmer-Rich

Jonathan Witmer-Rich

Cleveland State University - Cleveland-Marshall College of Law

Date Written: October 21, 2016

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

Suggested Citation

Witmer-Rich, Jonathan, Arbitrary Law Enforcement is Unreasonable: Whren's Failure to Hold Police Accountable for Traffic Enforcement Policies (October 21, 2016). 66 Case Western Reserve Law Review 1059 (2016), Available at SSRN: https://ssrn.com/abstract=2857216

Jonathan Witmer-Rich (Contact Author)

Cleveland State University - Cleveland-Marshall College of Law ( email )

2121 Euclid Avenue, LB 138
Cleveland, OH 44115-2214
United States

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