Commentary

A Big Setback for Liberty

The Supreme Court issued an important ruling last week concerning the constitutional threshold at which the police can deprive citizens of their liberty and put them in jail. By a 5-4 vote, the Court ruled that police officers can arrest citizens for any petty offense committed in their presence.

The facts in the case were not disputed. Gail Atwater was driving her children home from soccer practice. A toy fell out of the vehicle somewhere along their neighborhood street. Atwater let her kids stand on the front seat while she slowly retraced her route so that the kids could spot their lost toy. A local cop noticed that the kids were not wearing their seatbelts and pulled Atwater over. The officer proceeded to put Atwater in handcuffs and placed her in his cruiser. A neighbor arrived just in time to take custody of the children. Atwater was taken to the local jail and her vehicle was towed away.

Atwater did not contest the seat belt violation (she paid the $50 penalty), but she believed the police officer had abused his authority by arresting her instead of just giving her a ticket. Atwater was particularly disturbed by the way the cop had bullied her in front of her kids. When she asked the officer to lower his voice because he was scaring the children, he only became more agitated. “You’re going to jail!,” he exclaimed. After discussing the incident with her husband, Atwater decided to file a lawsuit against the patrolman and his employer, the Texas city of Lago Vista The case ultimately came before the Supreme Court.

The constitutional issue was whether police officers can arrest people for minor offenses without a warrant. The city argued that even if the officer exercised bad judgment in the Atwater situation, there was no constitutional violation. Atwater urged the Court to adhere to the old common-law rule, which said officers could not arrest people for minor offenses without a warrant unless the offense constituted a “breach of the peace.” Because a seatbelt violation cannot be considered a breach of the peace, and because the officer had no warrant, Atwater claimed the officer violated her constitutional rights by placing her under arrest.

The genius of the American Constitution lies in its system of “checks and balances.” The framers of the Constitution divided the power to search and arrest between the executive branch (the police) and the judicial branch (the judges). The police were not supposed to be able to search and arrest whenever they thought it would be a good idea. The warrant clause in the Fourth Amendment of the Constitution requires the police to apply for warrants from neutral and detached judicial officers. If the police can convince a judge with evidence that a particular person has violated the law, the warrant would issue. If the judge is not convinced, the police must leave the citizen alone and either drop the case or continue investigating. Thus, the warrant application process “checks” the power of the police.

The courts have always recognized that there will be some situations where the police must be able to act without warrants. For example, the police can chase down and arrest bank robbers who are trying to make their getaway. But with respect to minor offenses that do not involve a breach of the peace, the Constitution’s warrant clause serves as a bulwark of individual liberty.

Unfortunately, the Supreme Court lost sight of the importance of warrants in Atwater’s case. The Court ruled that warrantless arrests for minor offenses are legal and that Atwater’s legal claim against the officer and the city should be thrown out.

The implications of this ruling are quite serious. The legal logic of the ruling extends not just to seatbelt violations, not just to traffic violations, but to any minor infraction, including littering. As a practical matter, this means that you could spend up to two days in jail before a judge examines your case and determines whether the police officer overstepped his authority by arresting you.

The dissenting justices noted that a whole new class of people will be introduced to the unpleasantness of the local jail. Atwater was lucky to get out of jail in an hour, but it is inevitable that petty offenders across the country will soon be spending evenings with hard-core criminals.

What is worse is that the whole idea of “arrest warrants” may soon vanish from our vocabulary. The Supreme Court has been giving so much power to the police that warrants are increasingly unnecessary. The Fourth Amendment’s warrant clause is disappearing before our eyes—and so is our liberty.

Timothy Lynch is director of the Project on Criminal Justice.