Protecting Constitutional Rights in an Age of
Anxiety: A New Approach
By Laurence A. Benner
A growing
disquiet is rumbling through the land regarding our constitutional system
for protecting human rights. The astonishing numbers of wrongfully convicted
citizens revealed by innocence projects through DNA testing, the statistical
documentation of racial profiling across the country, and the disclosure
of widespread perjury, abuse, and corruption throughout an entire
law enforcement unit like the Rampart Division of the Los Angeles Police
Department, are all signs pointing to a structural failure in constitutional
protection for individual liberty. It is widely acknowledged, for example,
that neither the Fourth Amendment nor the Equal Protection Clause provides
a workable solution to the problem of racial profiling. In this post-September
11 era, as hydraulic pressures to diminish liberty and privacy increasingly
press on our fragile system of checks and balances, the need to explore
new and alternative solutions is even more acute.
This article looks at why the traditional
"rights/remedy" paradigm has failed and proposes a fundamentally
different approach. Employing the Privileges or Immunities Clause of
the Fourteenth Amendment, this new approach would generate proactive
rather than reactive solutions to the problem of maintaining constitutional
protections for human rights. In particular, we will see how the right
to travel, now firmly established as a privilege of national citizenship,
could be used to address the problem of racial profiling.
Standards, Rules, and Sanctions
We often think of problem solving in terms
of cause and effect. We seek to eliminate a problem by getting at its
root cause. Problem solving in the context of constitutional restraints
on police power, however, tends to employ a different paradigm. In recognition
of the law’s inability to purge from human nature the root causes of
arbitrary and discriminatory misuse of official power, constitutional
law seeks to limit the opportunities to wield unbridled discretionary
power. This is accomplished in the main through a combination of three
devices: standards, rules, and sanctions. Standards control discretion
by establishing criteria for exercising power, while bright-line rules
limit the circumstances where such discretionary power exists. Sanctions,
such as the exclusionary rule and tort liability under 42 U.S.C. § 1983,
are thought to deter official misconduct by punishing violations of
these rules and standards. While in theory a comprehensive framework
thus exists to both prevent and remedy unconstitutional intrusions on
individual liberty and privacy, this system is ineffective in practice
because each component of the system has been undermined by crippling
decisions of the U.S. Supreme Court.
Deconstitutionalizing Controls on Discretion
The Court’s treatment of the Fourth Amendment
is a classic example. Under the traditional reading of the amendment’s
text, the right to be free from unreasonable searches and seizures was
protected by the probable cause standard and the warrant requirement.
These text-based protections controlled the officer’s discretion to
encroach on liberty or privacy unless there was individualized justification,
determined by a neutral magistrate. Dominated by a "crime stopper"
mentality, however, the Supreme Court has given a new reading to the
amendment, which simply uses reasonableness as the touchstone of analysis.
Under this new interpretation, the Court has systematically dismantled
the traditional protections to give law enforcement greater discretion.
The Court began this deconstruction by first substituting "reasonable
suspicion" for the more robust probable cause standard. Initially,
this exception was limited to only a few narrow categories. Exceptions
to constitutional restraints on governmental power, however, are always
subject to constant pressure to expand. Cut adrift from traditional
textual moorings, the Court employed a simple balancing test to determine
cases under the more flexible "reasonableness" analysis. Not
surprisingly, the Court repeatedly found that "important"
governmental interests "outweighed" the liberty or privacy
claims of the solitary individual. As a result, an ever-expanding list
of exceptions dramatically scaled back the application of the probable
cause standard and reduced the warrant to a virtual artifact.
The Court even dispensed with any form
of individualized justification in certain types of cases, upholding
suspicionless searches and seizures under the so-called special needs
doctrine. To be sure, in each of these cases there were attractive reasons
for discarding traditional Fourth Amendment protections—from keeping
drunk drivers off the road to keeping drug abusing students off the
football field—but the "special needs" doctrine has threatened
to become a runaway freight train, because there are an abundance of
good causes that can be served by sacrificing protection for individual
rights.
The Impact of September 11
Last Term, before September 11, the Court
did attempt to apply the brakes, when it struck down narcotics checkpoints
and the drug testing of pregnant women, holding that suspicionless searches
and seizures must be justified by some immediate special need beyond
the general interest in crime control. However, this Term, a unanimous
Court has taken a different tack in two decisions that significantly
broaden the use of the reasonable suspicion test. In United States
v. Knights, 534 U.S. 112 (2001), the Court held that no "special
need" for flexibility has to exist to make a warrantless search
of a home on reasonable suspicion. The legality of such searches is
to be determined by simply balancing the interests of the government
against the privacy interests of the individual. In Knights,
the fact that the homeowner was on probation was dispositive. Knights
thus delivers the final coup de grace to the Framers’ text, making
it possible now for the Court to balance away the protection of the
warrant and probable cause standard even for privacy in the home—a core
constitutional interest.
In the second case, United States v.
Arvizu, 122 S. Ct. 744 (2002), the Court expanded the circumstances
that constitute reasonable suspicion, holding that where a person lives
can be used to color innocent conduct with suspicion. Thus, normal and
wholly innocent conduct by a family in a minivan, driving through a
national forest area in the afternoon on a public holiday, could be
considered suspicious because they were traveling on a road that bypassed
an immigration checkpoint and their minivan was registered to an address
in an Arizona border town that had a reputation for smuggling activities.
This steady erosion of the standards that
once controlled official discretion is just part of the picture, however.
The Court has also significantly narrowed the reach of the Fourth Amendment
by narrowly defining its operative terms, "search" and "seizure."
Through the simple expedient of declaring that there is no "reasonable
expectation of privacy" in an area, the Court can eliminate all
Fourth Amendment protection whatsoever, because government intrusion
into such an area is not deemed to be a "search." Thus, the
Court has held that the Fourth Amendment does not restrict the government
from rummaging through our trash, our phone records, or bank records,
nor does it prevent prying into the privacy of our fenced backyards
from the air. Moreover, instead of narrowly limiting discretion with
its rulemaking power, the Court has crafted empowering bright-line rules
that bestow wide discretion upon police to conduct suspicionless searches
in a variety of settings. Finally, the Court has severely cut back sanctions
for violating the Fourth Amendment by creating numerous exceptions
to the exclusionary rule.
The Motive
The driving force behind all of these decisions
has been the Court’s obvious distaste for the exclusionary rule, which
lets the guilty go free, and an apparent fear that the Constitution
will become a continuously flowing font of tort liability and federal
intervention into matters best left to the states. It is, of course,
a myth that significant numbers of guilty defendants go free because
of the exclusionary rule, and concern over federalism issues would seem
to be misplaced in view of the seemingly impenetrable barriers created
by the doctrine of qualified immunity and the restrictive standing requirements
attending equitable relief. Nevertheless, the practical effect of the
Court’s Fourth Amendment jurisprudence has been to create a zone of
largely unreviewable discretion within which police can operate without
fear that evidence will be suppressed or personal liability incurred
because of a constitutional violation. Unfortunately, a collateral consequence
has been to substantially expand the zone in which citizens can be arbitrarily
subjected to official power simply because of their race. Like
the dog that didn’t bark in the famous Sherlock Holmes mystery, perhaps
the most significant factor, never mentioned by the Court in Arvizu,
was that the family in the minivan was Hispanic.
A Case in Point
Nowhere is the impact of deconstitutionalizing
controls over police discretion more evident than in the Court’s decision
last Term in Atwater v. Lago Vista, 532 U.S. 318 (2001).
Although the Fourth Amendment was intended by the Framers to protect
against the arbitrary exercise of power, in Atwater the Supreme
Court, by the margin of a single vote, abdicated its role as guardian
of that constitutional protection and upheld what all admit was arbitrary
and unreasonable—the full custodial arrest of a soccer mom for a seat
belt infraction, which under Texas law is punishable only by a $50 fine.
Ms. Atwater was handcuffed with her hands behind her back, placed in
a squad car, and transported (without a seat belt) to the police station.
There, she was stripped of her shoes, her possessions, and her eyeglasses.
After her mug shot was taken, she was placed in a holding cell for about
an hour before being released by a judge on a $310 bond. When she returned
to retrieve her car, she found it had been towed.
The record does not reveal any justification
for making a custodial arrest instead of issuing a citation. There was
no evidence that Ms. Atwater presented a flight risk or was a threat
to either the officer or the public. Nor was there any evidence that
she had provoked her arrest by being belligerent. It does appear, however,
that this officer was on a zealous crusade to enforce the seat belt
statute. Just three months earlier he had stopped Ms. Atwater
because he mistakenly suspected that one of her children was not wearing
a seat belt.
Believing that her warrantless custodial
arrest for a nonjailable offense was arbitrary and unreasonable, Atwater
filed suit against the officer under 42 U.S.C. § 1983. Over the dissenting
voices of Justices O’Connor, Stevens, Ginsburg, and Breyer, the Court,
in an opinion by Justice Souter, declared open season on motorists by
refusing to place any restriction on an officer’s discretion to make
a custodial arrest for a minor infraction. Atwater argued that absent
circumstances where public safety required detention, a custodial arrest
was unreasonable if the underlying offense itself did not carry any
jail time. This seemingly straightforward bright-line rule, based on
legislatively authorized punishment, was rejected by the majority, however,
on the ground that such a rule would result in "increased litigation"
that could result in the exclusion of evidence and personal liability
of officers under § 1983 for making wrongful custodial arrests.
Faith and Unfaithfulness
During oral argument, Justice Souter indicated
his belief that the type of "horrible case" presented
by Atwater was "very rare." He, therefore, viewed as
"speculative" Justice O’Connor’s assertion that minor traffic
stops would become a gateway for harassment of minorities. Justice Souter
and the majority were content to rely on the "good sense (and failing
that, the political accountability) of most local lawmakers and law
enforcement officials" to prevent an "epidemic of unnecessary
minor traffic arrests." This idealistic faith in democracy as a
cure-all, however, is unfaithful to the Framers’ understanding of the
role of the Constitution. The Fourth Amendment was intended to prevent
abuses from occurring by constraining unlimited discretion precisely
because arbitrary power is destructive of liberty.
This democratic idealism also sadly
betrays a mindset far removed from the reality of racial stereotyping
and the plight of the powerless in America. By placing the burden on
the citizenry to prove there is an "epidemic" of abuse
before it will act to curb unbridled discretion, the Court overvalues
the corrective measures that exist in theory, and dramatically undervalues
the human liberty and privacy interests at stake.
Unbridled Discretion to Impose a Severe
Intrusion
Apart from the humiliation and stigma of
being arrested and handcuffed, a custodial arrest is a severe intrusion
that can inflict a substantial loss of physical liberty. Regardless
of the duration of incarceration, it constitutes a serious disruption
to the life of the person arrested and can have attendant social costs,
extending to the arrestee’s dependents and employer. A custodial arrest
also results in a substantial invasion of one’s privacy. The arresting
officer is now authorized to conduct a full search of the arrestee’s
person and any immediately adjacent property as an incident of that
arrest. The passenger compartment of the arrestee’s car can be searched
and the car impounded, permitting a full "inventory search"
to be undertaken. The arrestee is also subjected to the degrading process
of being "booked" and the not unfrightening experience of
being locked in a holding cell with strangers until bail is posted or
a magistrate orders release. The Court’s cavalier dismissal of the consequences
of a full custodial arrest displays an appalling indifference to the
values of individual dignity, liberty, and privacy protected by the
Fourth Amendment.
The risk that a police officer’s unconstrained
discretion will be abused must also be evaluated by the degree to which
opportunities for abuse exist. It is estimated that nationwide, there
are over nineteen million traffic stops annually, representing about
10 percent of licensed drivers. The exposure of such a considerable
portion of the population to unfettered discretion to
impose severe intrusions on liberty and privacy should give us pause.
But there is an additional reason why uncontrolled discretion should
not be sanctioned. This is because, as recent studies have now established,
the risk of being the target of such unbridled discretion is
not evenly distributed.
Racial Profiling
Statistics compiled by the U.S. Department
of Justice and local studies, such as the San Diego Police Department’s
Vehicle Stop Study, have shown that black and Hispanic drivers are more
likely to be stopped than white drivers. Officers who harbor racial
stereotypes about drug use by minorities may now, after Atwater,
effect a full custodial arrest as a pretext in order to do a full-blown
search of both driver and car. In a classic catch 22, the officer
cannot be cross-examined regarding the pretextual reasons for the stop
because, under Whren v. United States, 517 U.S. 806 (1996),
his subjective motivations are irrelevant for Fourth Amendment purposes.
Under Washington v. Davis, 426 U.S. 229 (1976), on the other
hand, a mere statistical showing that minorities are disproportionately
stopped in relation to their percentage of the population is insufficient
to trigger strict equal protection scrutiny without evidence of "purposeful
discrimination." Ironically, as the San Diego study revealed, the
overwhelming majority of searches of black and Hispanic drivers discover
nothing incriminating. Thus, these incidents never come to the Court’s
attention and the erroneous belief that this is not a serious problem
will continue.
A New Approach
There is another way to combat racial profiling,
however. This new approach is based on the Court’s recent decision in
Saenz v. Roe, 526 U.S. 489 (1999), that breathed
new life into the long dormant Privileges or Immunities Clause of the
Fourteenth Amendment, and reaffirmed that the right to travel is one
of the privileges of national citizenship.
The Privileges or Immunities Clause declares
that "No state shall make or enforce any law that shall abridge
the Privileges or Immunities of citizens of the United States."
It is important first to understand that the text of this clause differs
in significant ways from both the Equal Protection Clause and the Fourth
Amendment, each of which protects only against the denial or violation
of a defined right. The Privileges or Immunities Clause, like the First
Amendment, mandates broader protection by forbidding any abridgment
(to reduce or interfere with full enjoyment) of fundamental rights.
In the First Amendment context, abridgment can be found if the government
practice only "chills" a person’s freedom of speech. Thus,
abridgment does not require a complete denial of the right in question.
Saenz, for example, involved no denial of the right to
travel to California. The mere disincentive to travel and take up residence
there, created by the reduced welfare benefits payable to newcomers,
was deemed sufficient to make the plan unconstitutional.
If it is common knowledge that black citizens
will be stopped and frisked if they walk on the beach at night in a
certain affluent area, will this not chill their right to walk there?
Similarly, if it is known that Hispanic drivers are routinely pulled
over for "speeding" on a particular stretch of highway, will
this not chill their right to travel in that area? Thus, where it is
documented that traffic laws are enforced disproportionately against
certain racial minorities, this should constitute an abridgment of the
right to travel protected by the Privileges or Immunities Clause. In
contrast to equal protection analysis, proof of disparate racial impact
alone should be sufficient to establish abridgment because this circumstance
chills the right to travel.
The Remedy
The next question is, what to do about
it? To avoid succumbing to the pressures that deconstitutionalized Fourth
Amendment protections, we must find a remedy that eschews sanctions
such as the exclusionary rule and tort liability. These sanctions, of
course, would remain available for violations of Fourth Amendment rights.
It makes sense, however, not to impose the exclusionary rule as a sanction
for abridgment of the right to travel, because it removes what would
otherwise become a strong motivation to restrict the definition of abridgment
and limit the scope of the Privileges or Immunities Clause. It can also
be argued that abridgment of a privilege should not be subject to §
1983 tort liability because that statute requires a deprivation of the
right or privilege in question.
Taking a lesson from Brown v. Board
of Education, 347 U.S. 483 (1954), and building on the suggestion
made over a decade ago by noted criminal procedure authority Professor
Wayne LaFave, the remedy for abridgment by police of the right to travel
could instead be for courts to require that police departments promulgate
their own standards to control police discretion.
Thus, for example, neutral criteria could
be established for determining which drivers in the sea of traffic violators
will be plucked out for official retribution. Likewise, in the Atwater
context, the department could establish standards for deciding when
custodial arrests should be made for minor offenses.
A Federal Ombudsman
Although a police department’s failure
to implement adequate standards might be handled through injunctive
relief and contempt of court powers, the failure of individual officers
to obey such internal standards raises a broader issue. As the bogus
drug busts in the Dallas "Sheetrock" scandal and the Rampart
police scandal in Los Angeles have demonstrated, one of the glaring
deficiencies of the present system has been its failure to instill respect
for constitutional standards in rank and file officers. Because the
exclusion of evidence is seen as too high a price, gamesmanship, distortions
of the truth, and outright perjury currently make a mockery of integrity
in our criminal courtrooms.
Having the police (with judicial oversight)
establish their own standards will have a salutary effect. However,
neither the police nor local prosecutors have the necessary credibility
to act as enforcers of those norms. What is needed is an independent
investigative agency that citizens can turn to. One solution is to establish
a federal Ombudsman. The virtues of this independent government watchdog
have been recognized and duplicated by nations throughout the world.
The concept has also increasingly been employed in the medical community.
It is proposed, pursuant to § 5 of the
Fourteenth Amendment, that a federal Ombudsman be created in each federal
judicial district to receive and investigate citizen complaints regarding
allegations of police misconduct that abridge the Privileges or Immunities
Clause. The Ombudsman should have full authority, including subpoena
power, to thoroughly investigate complaints and make recommendations
to the state and local agencies concerned. He or she should also have
the power under certain specified circumstances to seek judicial enforcement.
The ultimate power of the Ombudsman, however, would be the power of
the press, public opinion, and democratic action at the polls. With
such a system in place, Justice Souter’s faith in democratic accountability
might then become a more realistic vision.
This is not to say there are no problems
with this approach. To be sure, many details remain to be worked out.
Chief among them would be how to ensure that the Ombudsman is selected
in a manner that guarantees his or her independence. The restoration
of the Privileges or Immunities Clause to its intended purpose to protect
all fundamental rights would also have to be undertaken. But it is a
new beginning and one that should at least be considered if human rights
are to remain a treasured value in this land of the free.
Laurence A. Benner is a professor of
constitutional law and criminal procedure at California Western School
of Law and former chief counsel to the Ombudsman Commission of Papua
New Guinea.
