What Were They Thinking? Fourth Amendment Unreasonableness in Atwater V. City of Lago Vista

Abstract

In Atwater v. City of Lago Vista the Supreme Court upheld the arrest and jailing of a woman for a seat belt violation even though her offense was punishable only with a small fine, and there was no reason why the police officer could not have simply issued a citation. Atwater thus permits, and indeed encourages, unnecessary and disproportionate arrests (along with the various searches and other hardships which routinely accompany an arrest). The extremely broad arrest power recognized by the Court also creates a grave potential for abuse in light of the breadth of modern traffic laws (almost every driver violates some minor traffic rule), the broad search powers which accompany an arrest, the documented tendency for some officers to engage in pretextual investigations and/or racial profiling, and the absence of effective legal limits on pretexts and profiling.

The Atwater decision is puzzling as well as troubling. The majority opinion admits that Ms. Atwater's arrest was "pointless" and, as explained in this article, the Court's reasons for upholding her arrest are not persuasive. This decision can best be explained in the context of other recent Fourth Amendment cases which, like Atwater, reveal the Court's attempts to limit further applications of case-specific "reasonableness balancing." However, even if the concerns underlying this latent trend are valid, they did not justify the decision in Atwater.

The proper resolution of a case like Atwater can benefit from, and contribute to, current theories of constitutional interpretation. Atwater shows the severe limitations of originalism and textualism, but it adds considerable support to (and helps to further refine) Professor Cass Sunstein's theory of "minimalism" - that the Court should generally decide cases narrowly both in terms of the scope of the ruling and its reasoning. The facts and case-specific policy arguments in Ms. Atwater's case were compelling, and the Court's broad grant of arrest power risks many adverse unintended consequences. The Court easily could and should have ruled narrowly, deciding only that, for non-jailable traffic violations, the police must show a legitimate need to arrest rather than issue a citation. These legitimate needs are well defined in statutes and rules found in a number of states. Given the broad scope of traffic laws, and the infrequent circumstances which justify arrest for these minor violations, strict limitations on arrest powers are both essential and administratively feasible. All states should enact similar limitations by statute or criminal rule; if such limitations are not forthcoming, courts should not hesitate to recognize them under state constitutions.

Keywords: Fourth Amendment, arrest, citation release, police discretion, pretexts, racial profiling, reasonableness balancing, proportionality, constitutional minimalism, originalism

JEL Classification: K14, K40, K42