Discretionary Arrests

Index

INTRODUCTION

1. BACKGROUND
History of policing
Defining Discretion
Reasoning for discretion

2. STATEMENT OF THE CASE
Factual Background of Atwater
Procedural History
Supreme Court Ruling
Dissenting Opinion – Justices Breyer, Ginsburg, O’Connor, and Stevens

3. ARGUMENT
The decision in Atwater gives permission for police intrusion
Research documents an epidemic of unnecessary arrests for minor offenses
Atwater shows the need for an unambiguous bright line rule

4. CONCLUSION

Police Discretion: An Analysis of Post Atwater Warrantless Misdemeanor Arrests

The Fourth Amendment of the United States Constitution states that, “the right of the people to be secure in their persons … against unreasonable searches and seizures, shall not be violated.”^[1] An arrest made with a warrant is a seizure, which the Fourth Amendment requires to be reasonable.^[2]

INTRODUCTION

Imagine sitting in your car during a traffic stop as the police officer approaches you. Still unsure as to why you were stopped and without even asking for identification, he informs you that you are under arrest because your music was too loud. Beyond being alarmed and scared, you would probably also ask yourself, can an officer arrest me for such a petty misdemeanor offense? The answer to this question is yes.

On April 24, 2001, in Atwater v. City of Lago Vista, the United States Supreme Court provided an ultimately simple answer to this debate. The Court held that a warrantless arrest, such as that described above, does not violate the Fourth Amendment as long as it is based upon probable cause to believe that the arrestee violated some law in the presence of the officer.^[3] Consequently, the Supreme Court has taken criminal jurisprudence to a new ”level”, establishing that the probable cause standard applies to offenses regardless of how minor they may be. Since the Court’s holding in Atwater, the Police have had considerable discretion and power in arresting citizens for practically any offense.

An exemplar of such a warrantless misdemeanor arrest occurred during the summer of 2009 when Harvard Professor Henry Louis Gates was arrested for disorderly conduct as he yelled at an officer while on his property. Professor Gates had accidentally locked himself out of his home and police were called because a neighbor believed an intruder was attempting to enter the residence.^[4] The responding officer, Officer Crowley, proceeded to arrest Professor Gates for disorderly conduct due to what the officer termed in his police report as Gates acting in a “tumultuous manner.”^[5] The situation highlighted the vagueness of laws prohibiting disorderly conduct and thus emphasizes the perhaps unintended, but still inevitable, effects of the newly broadened scope of police discretion that the Police enjoy since Atwater. Many academics who studied the incident concluded that it shows the danger of allowing officers to have too much discretion in arresting citizens for alleged offenses; indeed the incident may come to be the proverbial “textbook illustration”, in coming years. Particularly alarming in this case was that it showed how an officer can use his arrest powers to sanction behavior which the officer personally does not agree with. This new, almost unlimited, degree of police discretion runs contrary to the fundamental rights embodied in our Constitution.

Broadening the scope of police discretion rolls back decades of progress in defining Fourth Amendment protections. The Atwater Court’s definition of justice functions largely by relying on a leap of good faith in the officer’s oath of obedience and an often unknown “binding code of ethics”.^[6] Prosecutors also have a wide range of discretion and are entrusted to act as a minister of justice. A prosecutor’s decision-making can by overridden by a presiding judge and his authority can also be revoked by governing bodies such as the Ohio Supreme Court and Bar Associations. Police are not technically subject to such scrutiny, thus widening their scope of power will only add to mass complaints of police distrust and abuse of power.

I had a firsthand view of the municipal courtroom structure while I worked in the City of Cleveland law department. While this was enriching in an academic sense, it also gave me a direct perspective of how the justice system works. Misdemeanor offenses are generally based on few facts or evidence, if any at all. A review of misdemeanor cases and their outcomes in Cleveland shows an almost incestuous relationship between city prosecutors and Cleveland officers. Sadly, this style of justice mirrors that found in almost every municipal courtroom across the nation, where officers often make arrests based on frankly irrelevant personal beliefs and prosecutors then base their cases off of their testimony. The Atwater Court’s decision to broaden police arrest powers worsens the effect of any bias or ulterior motive which the officer had for the arrest.

This article provides an in depth analysis of how far police discretion actually goes. First, we will discuss the beginnings of policing and how it evolved into our modern day “police force”. Next, we will discuss the origins of police discretion and why it became necessary for police work. We will then analyze the case of Atwater v. City of Lago Vista, and the effects which it has had on criminal jurisprudence. The central theme that we establish is that Atwater was an unwise decision and has permitted unnecessary, and indeed counterproductive, police intrusion. Accordingly, in future decisions, the Court should establish a brighter line, indeed a wiser rule, which protects the interests of citizens and society alike.

1. BACKGROUND

History of policing

In the early days of the colonies, there was no organized governmental police. And, since the American Revolution was in part driven by distrust of authority, it was not surprising that an organized police force was the ultimate fear of most citizens.^[7] Instead of having what we know today as a traditional police force, there were makeshift groups which instilled order; essentially they took the form of sheriffs and night watchmen.^[8] These groups were made up of ordinary citizens with little to no training, who volunteered role to help the community.^[9] Beyond the major settlements, there were vigilantes who used force and punishment to drive unwanted people from their areas.^[10]

It was not until midway through the nineteenth century, that the idea of institutionalized policing rose to the forefront.^[11] As cities experienced rapidly increasing population and disorder, the first police departments were organized and trained using the English policing models.^[12] Unlike English police forces, the American officers had personal authority with everyday citizens; this informal authority allowed for the early police to have a connection to politics.^[13]

As officers swiftly gained authority, citizens quickly came to distrust them. Soon thereafter, regular complaints arose regarding abuse of power and excessive force.^[14] Citizens began to believe that the organization of these municipal officers created an “unprecedented incursion upon individual liberties.”^[15]

As police corruption and ineffectiveness continued, citizens called for the reform of police departments and professionalization.^[16] This led to the more structured and military style hierarchy of police.^[17] While this implementation made organized policing seem more accountable, there were still substantial complaints as to officers’ relations with citizens. Individuals argued that officers had too much power because they were able to function as discrete actors without centralized control.^[18]

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^[1] Peyton v. New York, 455 U.S. 573, 585 (1980)

^[2] Id.

^[3] 532 U.S. 318 (2001)

^[4] Time Magazine, July 2009

^[5] Id.

^[6] Stanley Z. Fisher, Just the Facts, Ma'am: Lying and the Omission of Exculpatory Evidence in Police Reports, 28 New Eng. L. Rev. 1 (1993)

^[7] Peter K. Manning, Economic Rhetoric and Policing Reform, in The Police and Society: Touchstone Readings 376 (Victor E. Kappeler ed., 1995).

^[8] Carol S. Steiker, Second Thoughts About First Principles, 107 Harv. L. Rev. 820, 830 (1994).

^[9] Id.

^[10] Id.

^[11] Mark H. Moore & George L. Kelling, “To Serve and Protect”: Learning from Police History, 70 Pub. Interest 53(1983).

^[12] Id.

^[13] Peter K. Manning, Economic Rhetoric and Policing Reform, in The Police and Society: Touchstone Readings 376 (Victor E. Kappeler ed., 1995)

^[14] Id.

^[15] Supra at note 7

^[16] Derrick Bell, Race, Racism and American Law 341 n.41 (3d ed. 1992)

^[17] Albert J. Reiss, Jr., Police Organization in the Twentieth Century, in Modern Policing 51-97 (Michael H. Tonry & Norval Morris eds., 1992)

^[18] Id.