"Well-Motivated" Government Actors and Bright-Line Rules

    I interviewed once with a DOJ bigshot who looked at my resume and said: “I see you’re into philosophy.  Well, around here, we don’t sit around pondering the philosophical implications of the Fourth Amendment.”  Turns out we do: a lot of agents really like to ponder the philosophical implications of the Fourth Amendment, and it doesn’t take much to get them going.  I’ve spent less time with local police, but I would imagine the impulse is the same. 

    I’m teaching criminal procedure this semester, and while I was thinking about the ethical/jurisprudential impulse to impose bright-line rules, I read Rick Garnett’s post, below, on Cass Sunstein and his “cognitive infiltration” proposal, and the interesting comments from readers.   Professor Tushnet comments that while you can never escape the problem of bad-faith government actors (“Of course, it could be that the risk that the government will not be well-motivated is high enough that on rule-utilitarian-like grounds we ought to preclude the practice entirely”) that possibility (I think this is his point) should not necessarily be sufficient justification for a flat prohibition on some category of government action that might be carried out by “well-motivated” government actors.     And Dave argues that “[a] posture of distrust of the government is only rational if Greenwald's empirical assertion about the government's inherent badness is accurate,” adding that many of us may be wearing ideologically-tinted glasses when we theorize about the limits of legitimate state power, “identify[ing] as typical of government only that state conduct you dislike.”   

    Below the fold I have some thoughts on the manifestation of this dilemma in criminal procedure.  In a nutshell, I think it’s interesting to consider the development of modern Fourth Amendment doctrine as a instance of such “selection bias”: when we think about constitutional rules, do we see the worst police conduct, or the best?  More broadly, I think the development of modern Fourth Amendment doctrine is a useful case study in the consequences of foundational disagreement about the nature of justice and happiness– the foundational disagreement posited by Alisdair MacIntyre as fatally undermining the possibility of a successful modern virtue ethics.  

        The details of the search rules are an eye-opener for the students.  When they put together Whren, Atwater, Robinson, Bertine, etc., they get a startling lesson in the scope of police powers that most of them have never even suspected existed.  A cop who lacks any basis for believing you've committed a crime, can simply follow you as you drive until you inevitably violate some traffic law, no matter how minor.  At that point he can pull you over and arrest you, even if the maximum penalty for your offense was only a fine, and even if he wasn't interested in that offense in first place. Then he can fully search your person and clothing for whatever he wants, and then he can impound your car and do a complete inventory search of all its contents. 
    And if he's like the intrepid Bart Turek, you will argue to no avail that he’s a thug who’s mad because he tried to pull you over for a seatbelt violation two months earlier but was stymied because you were wearing your seat belt– and one must assume that that’s not the whole story of Bart Turek’s motivation.  If anyone knows the story please fill me in.
    (I was teaching in Texas when Atwater was decided, and one of my students said she was from Lago Vista and knew Turek, but for some reason I never followed up on that lead.   My t.v. version would go something like this: Bart loved Gail in high school, but she turned him down when he asked her to the prom and then started dating some big-shot college boy while Bart was stuck in stupid old Lago Vista, but then Gail and college-boy got married and moved back to town, and Bart got on the cops and he thought, oh, boy, I'll show you who gets to to say no now.  (Think of that scene at the beginning of "Garden State.").)
    This realization freaks them out: “Oh my god, what kind of country do we live in?  What can we do about this?”  “Given Atwater and Whren, what protection does the Fourth Amendment still offer us?”  (This is LA, so they have to drive home.)  There’s no easy answer, and in thinking about this question I am reminded that one reason I am finding the teaching of law so satisfying is it really is in many respects the practical instantiation of philosophical concepts and dilemmas. 
    For years I tried to engage students in the opposition in ethical theory between the approaches of Kant and Aristotle– rules vs. character.  In a nutshell, Aristotle thought the object of ethics was to produce good people by developing good character, which means dispositions to act in certain (good) ways; Kant thought the object of ethics was to set forth bright-line rules, the self-conscious adherence to which constituted right action.  For Aristotle, a person who fights against his dispositions but overcomes them is not as virtuous as a person who has good dispositions to begin with and doesn’t experience good action as an internal struggle.  For Kant, dispositions are morally irrelevant at best: action has moral worth only if it is done through self-conscious rule-following– that is, done both in accordance with the rule and because it is in accordance with the rule.  Kant famously said that Aristotelian virtue ethics (inculcating virtuous character) was like the euthanasia of moral sensibility, because it assumed the desirability of the alignment of inclination with reason.  Most people have probably spent some time pondering the opposition between these two absolutely incompatible ways of thinking about morality. 
    You really ponder it when you're teaching the cops and robbers stuff, because you're forced to ask: what should we be focusing on, as citizens, lawyers, prosecutors, if we want ethical, responsible policing?  Is there any set of bright-line rules, however elaborate, that will protect Gail Atwater from Bart Turek?  Seems like there are two basic approaches: We could say:  “Let's not have too may rules, and let's not have any bright lines; let's just have dedicated, smart, public-spirited, good people be our cops.”  (This is, I guess, the Tushnet/Dave position on Sunstein’s proposal.)  Or do we say: “Hah!  That's impossible!  What we need are rules, lots of rules, clear bright lines.” (This would be Greenwald’s, Garnett’s, and A.J. Sutter’s position on Sunstein’s proposal.) 
    The Supreme Court has usually opted for clear, bright lines.  To be sure, there are exceptions, but the argument that “We need a bright line for law enforcement” is very often a winner.  Both sides make it.  I’ve made it myself, and I’ve seen the utility of bright lines when working in law enforcement. 
    But in trying to explain the basis for their appeal in a way that goes beyond football analogies (you know, the cops are like the linemen: you need them to have a set procedure on each play, and stick to it.  You can’t have them out there improvising on every play.  You get one improviser, and that’s the quarterback (the prosecutor, of course...)), I wind up with two possibilities: We need bright lines because either:

    (a) we'll never get dedicated, smart, public-spirited, good people to be our cops, or
    (b) we just can't agree as a society about the specification of those terms. 

    In other words, are we assuming the worst of our cops, or are we trying to come up with rules that can fit a world in which “worst” and “best” just have no agreed-upon meaning? Proposition (a) would probably be endorsed by, say, Kant, Jeremy Bentham, and maybe William O. Douglas (or you can fill in whatever modern polemicist you want).  Proposition (b) is associated paradigmatically now with Alisdair Macintyre, building on a seminal essay by Elizabeth Anscombe called “Modern Moral Philosophy” that I bet most readers of this blog read in an undergraduate philosophy class way back when.  Anscombe argued that virtue ethics had become untenable and would remain so in modern societies that embraced social/ethnic/religious/political/ideological pluralism.
    Here’s why I find this question interesting. The point of the bright-line rule the Atwater dissenters wanted (no arrests for fine-only misdemeanors) is that Bart Turek was not a dedicated, smart, public-spirited, good person.  He was just harassing this woman for his own private reasons, whatever they ultimately were.  I think at least most of us would agree that if (a) above really came to pass, the Atwater case would never have arisen, and that Atwater is not an instance of (b).  That is, we do agree that a dedicated, smart, public-spirited, good person would not have done what Bart Turek did.  We just, presumably, have reconciled ourselves to the fact that Bart and people like him will sometimes wind up on our police forces. 
    The Atwater majority agreed that Turek was “at best, exercising extremely poor judgment,” and that his actions were “foolish” and imposed “gratuitous humiliation” on Atwater, who suffered a “pointless indignity.”  But they didn’t think that this bad behavior warranted imposition of a rule– because most cops are not like Turek and some situations really might justify misdemeanor arrests.  In other words, we don’t need Kant; we can rely on Aristotle here (as the Court put it: “the good sense . . . of most . . .  law-enforcement officials”).
    Contrast this to the Warren Court’s ethical assumptions that underlie cases like Katz. David Sklansky has a great article on the unspoken toilet-stall-peeping backstory to Katz.  He makes a really compelling case that proposition (a)-- the cops’ “good sense” cannot be trusted, because they are spending their time soliciting gay sex on the streets and peeking into toilet stalls in public bathrooms-- played a big part in the Supreme Court's thinking in the 60s.       
    I can buy it at the time of Katz.  And I remain sympathetic to that general concern in certain contexts (e.g. racial profiling in some regions), though I think its normative force has faded with the truly enormous gains in the diversification and professionalization of police forces that have occurred since then.  There are bad actors and bad acts, to be sure, but I agree with Sklansky that the professionalization of policing is one of the central ways in which our society has progressed since the 60s.  Sklansky indeed suggested at conference here at Southwestern back in October that professionalization has altered the social landscape against which the leading exclusionary rule cases were decided, and that with increased professionalization comes decreased need for bright-line Fourth Amendment exclusionary rules.
    I have spend a fair amount of time, as I noted above, talking about this issue with law-enforcement agents.  Here’s what most of them say (this is just my experience, not any kind of survey), and I think it’s right: No bright-line procedural rules can lead to orderly, reasonable, and respectful law enforcement if the police aren’t well-motivated, to use Tushnet’s phrase, and conversely, if they are well-motivated then the rules aren’t (so) necessary. 
    Paradoxically, perhaps, my experience working in law enforcement is that most cops and agents are well-motivated, public-spirited, dedicated, and honest– and that they also want and work very well with bright-line rules; they can learn them, internalize them, follow them, and self-police.  
    So the question is a chicken-egg one, I think. “Professionalization” has certainly occurred on an extraordinary scale since the 60s; at the same time, a generation of cops has grown up accustomed to bright-line rules.  Is “professionalization” a consequence of judicially imposed bright-line rules, or an independent development?  When we talk about a professionalized police force, do we mean “one that strictly imposes bright-line procedural rules”?  Or do we mean “one that has internalized a culture of rule-following and respect for bright-line rules”?  (These are not the same thing, as Charlie Beck has been stressing here in LA.)  Or do we mean more broadly one that is getting “public-spirited, dedicated, honest, ‘good’ people” to be cops?   Some of each, I suppose. Maybe the latter two sets will be largely coextensive.
    But there’s still MacIntyre’s problem: sure, we agree about Bart Turek, but when you consider other hot-button cases that rile people up (think Whren and Bostick, say)– or Sunstein’s “cognitive infiltration” propoosal–  the social consensus evaporates.  When we make the problems a little more complicated, a lot seems to depend on our substantive, subjective definition of “dedicated, public-spirited, good person,” or in Tushnet’s terms, “well-motivated.”  
    Proposition (b)– MacIntyre’s thesis–  is put dramatically on display by cases like Whren or “cognitive infiltration.”  All right, you don't like narcotics cops going after drug dealers for "pausing too long at a stop sign."  Okay.  But do you oppose all target investigations?  Do you oppose busting Scooter Libby for lying but not charging the leak?  Do you oppose busting Martha for lying but not charging the insider trading?  But do you oppose going after Al Capone for tax evasion because they couldn't make the murder and racketeering case?  I'm not sure we have a clear societal intuition on pretextual enforcement, assuming (as with Whren and Capone) that there's no problem of proof on the pretext bust.  But intuitions probably cleave in a lot of different places here, and I suspect that in many instances they cleave over substance not procedure.  Thus it’s not that we assume the worst of the cops in these situations; rather, it’s that we just can’t, and may never, agree on what “the worst” or “the best” is.  In that situation, I suppose a bright-line rule is better than no bright-line rule– but the point is, the existence of the rule won’t mollify anyone who has a substantive disagreement with the law being enforced.