The Volokh Conspiracy
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The Supreme Court has handed down Heien v. North Carolina, the Fourth Amendment case I have blogged about a few times on whether the Fourth Amendment is violated when an officer pulls over a car based on a reasonable but mistaken belief that the traffic laws prohibit the driver's conduct. The Court ruled 8-1, per Chief Justice Roberts, that the Fourth Amendment is not violated in such circumstances. Only Justice Sotomayor dissented. The basic reasoning of the case is simple, but it leaves some complications that have some interesting implications for lower courts and for the relationship between Fourth Amendment rights and remedies.
Here's the core of the Chief Justice's opinion:
As the text indicates and we have repeatedly affirmed, "the ultimate touchstone of the Fourth Amendment is 'reasonableness.'" Riley v. California, 573 U. S. ___, ___ (2014) (slip op., at 5) (some internal quotation marks omitted). To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them "fair leeway for enforcing the law in the community's protection." Brinegar v. United States, 338 U. S. 160, 176 (1949). . . .
Reasonable suspicion arises from the combination of an officer's understanding of the facts and his understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law.
The Court's holding raises two major questions. First, how much law does a reasonable police officer know? And second, if a reasonable mistake of law means there was no Fourth Amendment violation, how do we reconcile that with the remedies cases saying that a reasonable mistake of law is a reason why there is no Fourth Amendment remedy? I'll consider each in turn.
(1) How much law does a reasonable police officer know?
If the Fourth Amendment incorporates reasonable mistakes of law, then there must be a standard for how much law a reasonable officer knows. For example, does a reasonable officer just follow the text of the law like a lawyer would? Does he know the major cases interpreting the law? Or does he just know what is taught at the police academy, or maybe what the public thinks the law probably is?
The majority opinion says that the standard is whether it is "objectively reasonable for an officer in [the searching officer's] position to think that" the conduct violated the law. The opinion explains:
[T]he inquiry is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation. Thus, an officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.
That's a start, although it's still pretty vague. Sloppiness is a relative term. A sloppy study of the law for a lawyer might be a very careful study of the law for a non-lawyer. What's the reference point to determine sloppiness? The Court's application of the standard at the end of the opinion mostly focuses on the text of the law, and also notes the absence of cases construing the text. So maybe the reasonable officer knows the text and is aware of at least major cases interpreting it? It's hard to say.
In a concurring opinion, Justice Kagan, joined by Justice Ginsburg, offers more guidance. Justice Kagan writes:
[T]he government cannot defend an officer's mistaken legal interpretation on the ground that the officer was unaware of or untrained in the law. And it means that, contrary to the dissenting opinion in the court below, an officer's reliance on "an incorrect memo or training program from the police department" makes no difference to the analysis. 366 N. C. 271, 284, 737 S. E. 2d 351, 360 (2012) (Hudson, J., dissenting). Those considerations pertain to the officer's subjective understanding of the law and thus cannot help to justify a seizure.
. . ..
Justice Story's opinion in The Friendship, 9 F. Cas. 825, 826 (No. 5,125) (CC Mass. 1812) (cited ante, at 7), suggests the appropriate standard for deciding when a legal error can support a seizure: when an officer takes a reasonable view of a "vexata questio" on which different judges "h[o]ld opposite opinions." See Brief for United States as Amicus Curiae 26 (invoking that language). Or to make the same point without the Latin, the test is satisfied when the law at issue is "so doubtful in construction" that a reasonable judge could agree with the officer's view. The Friendship, 9 F. Cas., at 826.
A court tasked with deciding whether an officer's mistake of law can support a seizure thus faces a straightforward question of statutory construction. If the statute is genuinely ambiguous, such that overturning the officer's judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not. As the Solicitor General made the point at oral argument, the statute must pose a "really difficult" or "very hard question of statutory interpretation." Tr. of Oral Arg. 50. And indeed, both North Carolina and the Solicitor General agreed that such cases will be "exceedingly rare." Brief for Respondent 17; Tr. of Oral Arg. 48.
According to Justice Kagan, then, "the test is satisfied when the law at issue is so doubtful in construction that a reasonable judge could agree with the officer's view." (emphasis added). That's a much narrower test than a reasonable officer, it seems. It will be interesting to see what standard lower courts will take. On one hand, Justice Kagan offers the most explicit guidance. On the other hand, her opinion reflects the views of only two Justices.
(2) What about the remedies cases?
The next puzzle raised by Heien is how to reconcile it with the Supreme Court's cases saying that a reasonable mistake of law is part of the remedies inquiry. The remedies cases make a big deal about how Fourth Amendment rights and remedies are distinct. If this opinion blends the two issues, we then need to figure out the relationship between them. Here's the Chief:
Heien is correct that in a number of decisions we have looked to the reasonableness of an officer's legal error in the course of considering the appropriate remedy for a constitutional violation, instead of whether there was a violation at all. See, e.g., Davis v. United States, 564 U. S.___, ___ (2011) (slip op., at 11) (exclusionary rule); Illinois v. Krull, 480 U. S. 340, 359-360 (1987) (exclusionary rule); Wilson v. Layne, 526 U. S. 603, 615 (1999) (qualified immunity); Anderson v. Creighton, 483 U. S. 635, 641 (1987) (qualified immunity). In those cases, however, we had already found or assumed a Fourth Amendment violation. An officer's mistaken view that the conduct at issue did not give rise to such a violation-no matter how reasonable-could not change that ultimate conclusion. See Brief for Respondent 29-31; Brief for United States as Amicus Curiae 30, n. 3. Any consideration of the reasonableness of an officer's mistake was therefore limited to the separate matter of remedy.
Here, by contrast, the mistake of law relates to the antecedent question of whether it was reasonable for an officer to suspect that the defendant's conduct was illegal. If so, there was no violation of the Fourth Amendment in the first place.
As I understand it, then, the inquiries are supposed to be separate. First, if the issue is whether there was probable cause or reasonable suspicion, then the facts can be construed in light of an officer's reasonable understanding of the law based on the less-forgiving Heien standard to answer that. Second, if the issues is whether a particular Fourth Amendment violation justifies a particular remedy, the more-forgiving standard can be used for the remedies inquiry.
If we adopt the narrow reading of the Heien standard offered in Justice Kagan's concurring, then that makes sense. Although if you take a broader standard for reasonable mistakes of law for a Heien error, I think it becomes harder to separate the merits and remedies questions.