The End of Liberty

This essay originally appeared on National Review Online on April 25. Copyright 2001 National Review.
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The Supreme Court dealt a devastating blow to the Fourth Amendment and individual liberty this week. In a 5–4 ruling, the Court said police officers can jail citizens for minor offenses without arrest warrants. The case, Atwater v. City of Lago Vista, lowers the constitutional threshold by which citizens can be deprived of their liberty.

Gail Atwater was driving her kids home from a soccer game. A toy fell out of the vehicle in their neighborhood and Atwater was retracing their route slowly so that the kids might be able to spot the lost toy. A police officer pulled Atwater over and barked at her for not keeping her kids in their seatbelts. Instead of issuing her a ticket, the cop put Atwater in handcuffs and took her into custody. Luckily for the Atwater family, a neighbor arrived on the scene just in time to spare the children from temporary foster care.

Atwater spent an hour in jail, posted bond, and returned home. She later admitted to the seatbelt infraction and paid the $50 fine. But Atwater was so upset by the way in which the patrolman scared her kids and bullied her that she sued the cop and the city for violating her constitutional rights.

The case worked its way all the way up to the Supreme Court. The City of Lago Vista argued that its cop noticed a legal infraction and exercised his legal discretion in taking Atwater into custody. Police officers might disagree among themselves as to the propriety of that decision, but there was no constitutional violation. Atwater argued that the Fourth Amendment constitutionalized the common‐​law rules pertaining to arrests and searches — and that under the common law, police needed an arrest warrant for misdemeanors that did not involve a breach of the peace. Since the officer had no arrest warrant for Atwater, her arrest was unconstitutional.

Writing for a majority of justices, David Souter found the common law to be unclear on the matter. The majority then quickly reached the conclusion that the police have to have unfettered discretion because any other rule would hamper law enforcement and foster litigation.

The Atwater ruling is terribly mistaken because it essentially reads the Warrant Clause out of the Constitution. In a matter of a few short years, the term “arrest warrant” will gradually vanish from usage. After all, why should the police apply for an arrest warrant when the court has now given the executive branch a license to arrest citizens whenever they believe a law has been violated?

The Framers of the Constitution sought to limit the power of search and arrest by dividing that power between the executive branch and the judicial branch. If the police can convince a judicial officer with evidence that a person committed a crime, a warrant would issue. Otherwise, the police had to leave the citizen unmolested and continue investigating. What’s important to note here is that the constitutional presumption favors individual liberty, not police power.

The Atwater ruling turns the Framers presumption on its head. The Atwater rule now give the police a green light to arrest citizens — and we’ll sort everything else out later. Amazingly, the Court admitted that the officer who arrested Atwater exercised “extremely poor judgment.” Nevertheless, the Court callously observed that because Atwater’s attorney could not prove that such incidents were of “epidemic” proportions, the problem could be handled by local electoral processes.

Conservatives are rightly indignant when liberal Supreme Court justices ignore constitutional provisions like the Second Amendment and the Tenth Amendment. But in this case the conservatives teamed up with David Souter to ignore the Warrant Clause of the Fourth Amendment.