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Sunday, October 05, 2014

A Middle Ground In Heien v. North Carolina?

Could a middle-of-the road solution prevail in Heien v. North Carolina, the fascinating and important Fourth Amendment case being argued on Monday? The parties and most commentators have understandably focused on the more absolutist positions in the case, but alternative dispositions are available. In particular, the Court could rule that mistakes of substantive law are reasonable for Fourth Amendment purposes only when the police have relied on clear guidance from authoritative sources, like courts or legislatures. That middle-ground approach would give the government a partial victory on the legal standard applicable in future cases, while affording the defendant a victory in the case at hand.

The question presented in Heien seems pretty stark: “Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.” This formulation seems to ask whether an officer’s mistake of law during a traffic stop can ever satisfy the Fourth Amendment. If the Court answered in the negative, that would certainly be good news for the petitioner, who was stopped based on suspicion that he had violated a traffic requirement that (state courts later concluded) did not actually exist. Much of the briefing focuses on this broad framing. For example, the petitioner argues that if ignorance of the law is no excuse for average people, then it shouldn’t be an excuse for police either. Orin Kerr and other commentators have taken up this salient line of reasoning. For my part, I’ve blogged about how the question presented is in tension with the rule of lenity and informed by arguments from history.

But the petitioner could actually prevail under many narrower holdings, and the petitioner’s briefing effectively acknowledges as much. Consider for example this passage from the petitioner’s reply brief:

Even if this Court were to deem good faith pertinent to the legality of traffic stops based on mistakes of substantive criminal law, an objectively reasonable misinterpretation of a never-before-construed statute still would not supply reasonable suspicion. Contrary to the State’s and Solicitor General’s arguments, tolerating this sort of mistake would establish pernicious incentives for police officers at the expense of individual liberty. It is one thing to tolerate police officers’ mistaken reliance on clear dictates issued by courts or legislatures; it is wholly another to tolerate officers’ own legal mistakes, even if supposedly reasonable.

In other words, we want and expect police to take seriously “clear dictates issued by courts or legislatures.” And when those “clear dictates” are wrong, that error is arguably attributable to the “courts or legislatures” that generated the relevant guidance—not to the police who quite reasonably followed it. As the passage above argues, this approach helpfully aligns incentives, in that it encourages police to think hard about the right answer whenever they lack clear guidance from legal experts. It also comports with widespread intuitions about what can “reasonably” be expected of police.

This relatively nuanced approach also has the advantage of comporting with the government’s reading of Michigan v. DeFillippo, where the Court seemed to say that police complied with the Fourth Amendment when they sought to enforce what turned out to be an unconstitutional ordinance. Instead of re-characterizing DeFillippo as a remedies decision (as the petitioner primarily argues), the Court could simply read its apparent Fourth Amendment holding narrowly. In Heien, there was no clear guidance from the legislature or from courts as to the relevant substantive law. Instead, there was just a confusingly written statute that (it seems) had never been authoritatively construed. Therefore, DeFillippo could easily be read not to apply in Heien.

In response, the United States as amicus pointed out that the state courts viewed the relevant statutory question as open to reasonable disagreement, given the relevant state statutory text and structure. And the United States also noted: “Cases involving similar stops had been adjudicated with no suggestion that a broken light was lawful.” These arguments fall short of showing that the police were relying on the legislature or courts. Instead, the police simply faced a challenging legal question that the legislature had created and that the courts hadn’t yet been asked to resolve. It does not even appear that the police sought out relatively expert legal guidance within the executive branch.

Notably, the government’s argument is in tension with its normal insistence that sub silentio holdings are not holdings at all. In another case being argued this sitting, for example, the United States cited Webster v. Fall: “Questions which merely lurk in the record, neither brought to the attention of the Court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Right or wrong, the government's idea that police are uniquely entitled to rely on sub silentio holdings is yet another form of Fourth Amendment exceptionalism at work in Heien.

Will even a single Justice be interested in exploring this kind of middle-ground result? Perhaps not. But it’s still an important aspect of the case before the Court.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on October 5, 2014 at 05:59 PM | Permalink


Anon: You make a good point, and I think your line of reasoning is plausible in its own right. But my post was drawing a distinction between mistakes of substantive versus procedural law. In Heien, the mistake went to substantive law. That distinction is itself disputable, of course. For more, see especially the US amicus brief.

Posted by: Richard | Oct 6, 2014 3:21:12 PM

If relying on a clear but incorrect dictate from legislatures and courts renders a search lawful, why is it that reliance on a clear but incorrect dictate from a magistrate that a search is lawful doesn't make a search lawful, and only goes to remedies? Your approach would (I think?) reconceptualize Davis as a rights case, but to make that work you have to draw a distinction between courts of appeals or state supreme courts on the one hand and magistrates on the other that may have a lot of real-world purchase but doesn't seem acceptable doctrinally.

Posted by: Anon | Oct 6, 2014 12:19:34 PM

11th hour, as you say. I plan to go to the argument and I'll blog some thoughts over at the VC as soon as I can afterwards.

With that said, the Court stressed in Herring and Davis that the remedy issue is distinct from the rights issue, so I don't think the outcome in Heien on rights has any particular connection to the outcome on remedies in a future case. If anything, the weakening of the exclusionary rule may help Heien: Heien's basic argument (which I find persuasive) is that the state's best arguments are remedies arguments that have no place in a rights discussion. And municipal liability in this context strikes me as one of those theoretical possibilities that isn't likely to come up much IRL. More after the argument...

Posted by: Orin Kerr | Oct 6, 2014 1:59:59 AM

Orin, Even if we assume the exclusionary rule will be entirely overruled, the result in Heien would still matter in cases where non-exclusionary remedies are requested, such as municipal civil suits based on unconstitutional policies (e.g., the policy of stopping cars for arguable but actually non-existent offenses). But my real point was that the result in Heien could indirectly affect whether and how the Court cuts back on the exclusionary rule. For example, the position of the United States, if adopted, would likely come with lots of language about deference to police expertise, the difficult decisions that police are forced to make, and the dangers of over-deterrence. That kind of opinion might help pave the way toward a general good-faith exception to the exclusionary rule. By contrast, a decision going entirely with petitioner could have the opposite tendency. I do tend to agree (if we are engaging in this kind of speculation) that the middle-ground approach would tend to solidify current exclusionary doctrine, rather than change it. But preserving the status quo would still be a significant practical effect.

I guess we can file this exchange under 'eleventh-hour speculation'! The argument starts in about 9 hours....

Posted by: Richard | Oct 6, 2014 12:57:48 AM

Richard, on the first point, can you say more about why that would be the case? If the Court is going to continue to cut back on the exclusionary rule, I don't know how the result in Heien can ever matter. If there is no exclusionary rule, the government wins either way. It's hard to see what difference it makes if they win for one reason or two.

Posted by: Orin Kerr | Oct 5, 2014 9:24:22 PM

Orin, I have nothing against symbolism, but I think your last few words point out one important reason why the middle-ground approach would be much more than symbolic: exclusionary doctrine is in flux and could even shift in light of the result in Heien itself. The right/remedy distinction matters in other ways, too, including in that it can be dispositive in state cases like Heien's--as I think you noted in your VC post. Finally, and apart from practical effects, there's value in being right. In light of DeFillippo, there is a plausible argument that the middle ground is doctrinally correct, as well as intuitive. Some Justices might agree--or not! We'll know more tomorrow.

Posted by: Richard | Oct 5, 2014 8:14:30 PM

Don't Illinois v. Krull and Davis v. United States already reach this result, but at the remedies stage? If the law already reaches this outcome but just under a different prong of the doctrine, I'm not sure what this middle ground achieves. It's a symbolic middle ground, but one that just reflects the current actual middle ground struck by exclusionary rule doctrine that is itself in considerable flux.

Posted by: Orin Kerr | Oct 5, 2014 6:44:00 PM

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