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Annoy No Cop

75 Pages Posted: 7 Mar 2017 Last revised: 14 Mar 2017

Josh Bowers

University of Virginia School of Law

Date Written: March 6, 2017

Abstract

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 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.

Keywords: Fourth Amendment, Legality, Autonomy, Conduct Rules, Arrests, Searches and Seizures, Order-Maintenance Policing, Understanding, Rule of Law

Suggested Citation

Bowers, Josh, Annoy No Cop (March 6, 2017). University of Pennsylvania Law Review, Vol. 166, Forthcoming; Virginia Public Law and Legal Theory Research Paper No. 2017-10 . Available at SSRN: https://ssrn.com/abstract=2928283

Josh Bowers (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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