A Big Setback for Liberty


The Supreme Court issued an important ruling last week concerning theconstitutional threshold at which the police can deprive citizens of theirliberty and put them in jail. By a 5–4 vote, the Court ruled that policeofficers can arrest citizens for any petty offense committed in theirpresence.

The facts in the case were not disputed. Gail Atwater was driving herchildren home from soccer practice. A toy fell out of the vehicle somewherealong their neighborhood street. Atwater let her kids stand on the frontseat while she slowly retraced her route so that the kids could spot theirlost toy. A local cop noticed that the kids were not wearing their seatbeltsand pulled Atwater over. The officer proceeded to put Atwater in handcuffsand placed her in his cruiser. A neighbor arrived just in time to takecustody of the children. Atwater was taken to the local jail and her vehiclewas 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 arrestingher instead of just giving her a ticket. Atwater was particularly disturbedby the way the cop had bullied her in front of her kids. When she asked theofficer to lower his voice because he was scaring the children, he onlybecame more agitated. “You’re going to jail!,” he exclaimed. Afterdiscussing the incident with her husband, Atwater decided to file a lawsuitagainst the patrolman and his employer, the Texas city of Lago Vista Thecase ultimately came before the Supreme Court.

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

The genius of the American Constitution lies in its system of “checks andbalances.” The framers of the Constitution divided the power to search andarrest between the executive branch (the police) and the judicial branch(the judges). The police were not supposed to be able to search and arrestwhenever they thought it would be a good idea. The warrant clause in theFourth Amendment of the Constitution requires the police to apply forwarrants from neutral and detached judicial officers. If the police canconvince a judge with evidence that a particular person has violated thelaw, the warrant would issue. If the judge is not convinced, the police mustleave 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 wherethe police must be able to act without warrants. For example, the police canchase down and arrest bank robbers who are trying to make their getaway. Butwith 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 inAtwater’s case. The Court ruled that warrantless arrests for minor offensesare legal and that Atwater’s legal claim against the officer and the cityshould be thrown out.

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

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

What is worse is that the whole idea of “arrest warrants” may soon vanishfrom our vocabulary. The Supreme Court has been giving so much power to thepolice that warrants are increasingly unnecessary. The Fourth Amendment’swarrant clause is disappearing before our eyes–and so is our liberty.